India: GAAR- Its Time Has Come

Last Updated: 22 February 2018
Article by Gagan Kumar and Rakesh Chhabra, CA

General Anti-Avoidance Rules

Introduction:

The issue of tax evasion has been plaguing economics all over the world and India is no exception. Since the days of League of Nations, Countries are grappling to achieve a balance in mitigating tax evasion without being a police state and interfering in day to day business of a tax payer.

It is in this context, time and again Specific Anti Avoidance Rules or judicial General Anti Avoidance Rules ("GAAR") have been used as a tool to curb the menace of tax evasion. However, with the evolution of business transactions and dynamics of flow of money and informations such measures have often been found lacking. Some of the Nations adopted a wider approach which is commonly referred as GAAR.

India also had its tryst with GAAR through Direct Tax Code which was shelved after much hue and cry. However, the GAAR provisions found its way in the existing statute with checks and balances. These GAAR provisions come into operation from this year and Assessment Year 2018-19 would be the first year when those provisions may be invoked.

What is GAAR

As the name suggests, GAAR is set of Rules under Income Tax Act, 1961 ("the Act") which empowers the revenue authorities to deny tax benefits transactions or arrangements which do not have any commercial substance or consideration other than achieving the tax benefits. GAAR consist of set of rules to check the avoidance of tax. The provisions of GAAR are contained in Sections 95 to Sections 102 under Chapter X-A of the Act. The necessary procedures for application of GAAR and conditions under which it shall not apply, have been enumerated in Rules 10U to 10UC of the Income-tax Rules, 1962.

Under this chapter Section 102(1) defines arrangement – It means any step in, or a part or whole of, any transaction, operation, scheme, agreement or understanding, whether enforceable or not, and includes the alienation of any property in such transaction, operation, scheme, agreement or understanding.

Section 95 of the Act is the enabling section. The chapter starts with a notwithstanding clause and accordingly overrides all other provisions of the Act. As per the provisions of Section 95 of the Act, GAAR shall be applicable on the assessee, who enters into an arrangement which is impermissible avoidance arrangement under section 96 of the Act. Also, tax avoided by entering into such transaction may be determined in accordance to the provision of the Chapter X-A of the Act.

What is Impermissible Avoidance Arrangement:

As per the provisions of Section 96 of the Act, an Impermissible Avoidance Arrangement ("IAA") means an arrangement whose main purpose is to obtain a tax benefit and it –

  1. creates rights, or obligations, which are not ordinarily created between persons dealing at arm's length ;
  2. Results, directly or indirectly, in the misuse, or abuse, of the provisions of Act;
  3. lacks commercial substance partly or wholly;
  4. is entered into or carried out by means or in a manner, which are not ordinarily employed for bona fide purposes.

Lack of Commercial Substance:

A business transaction is said to have commercial substance when it is expected that the determining whether future cash flows of a business will change as a result of the transaction. Generally, in tax avoidance transactions there is always lack of commercial substance because they really have nothing to do with changing cash flows of the entity.

Section 97 of the Act deals with the following transactions which may be deemed to lack commercial substance:-

  1. If the substance or effect of the arrangement as a whole, is inconsistent with or differs from, the form of its individual steps;
  2. The transaction may deemed to lack commercial substance if it involves round trip financing, an accommodating party, elements that have effect of offsetting or canceling each other or a transaction which is conducted through one or more persons and disguises the value, location, source, ownership or control of funds which is the subject matter of such transaction.

Round-trip financing includes financing in which funds are transferred among the parties to the arrangement and the transfer of the funds would result in a tax benefit.

Section 97(4) specifies the following facts that may be relevant but shall not be sufficient for an arrangement lacks commercial substance or not:

  1. The period for time for which the arrangement exists;
  2. The fact of payment of taxes, directly or indirectly, under the arrangement;
  3. The fact that an exit route is provided by the arrangement.

Here, Accommodating Party means a party to an arrangement, if the main purpose of the direct or indirect participation of that party in the arrangement, in whole or in part, is to obtain, directly or indirectly, a tax benefit.

To whom it shall not apply:

The provision of GAAR shall not apply in following situations: -

  1. An arrangement where the tax benefit in the relevant assessment year arising, in aggregate to all the parties to the arrangement does not exceed a sum of Rupees Three Crore (INR 30 million).
  2. It shall also not apply to Foreign Institutional Investors ("FII")

    • Who is an assessee under the Act ,
    • Who has not taken benefit of Double Tax Avoidance Agreements,
    • Who has invested in listed securities or unlisted securities,
  3. A non-resident, in relation to investment made by him by way of offshore derivative instruments or otherwise, directly or indirectly, in a Foreign Institutional Investor.
  4. Any income accruing or arising to, or deemed to accrue or arise to, or received or deemed to be received by, any person from transfer of investments made before the 1st day of April, 2017 by such person.

Consequence of GAAR:

Where a part of an arrangement is declared to be an impermissible avoidance arrangement, the consequences in relation to tax shall be determined with reference to such part only. There are the following consequence:-

  1. Denial of tax benefit (under treaty or the Act),
  2. Disregarding/ combining /re-characterising any step in, or a part or whole of the arrangement,
  3. Treating the arrangement as if it had not been entered into or carried out,
  4. Disregarding any accommodating party or treating any accommodating part and any other party as one and the same person,
  5. Deeming connected persons as one and the same,
  6. Reallocating income, expense, deduction, relief, rebate amongst the parties to the arrangement,
  7. Re-assign place of residence/ situs of asset or transaction (to other than what has been provided under the arrangement),
  8. Disregarding the corporate structure,
  9. Re-characterize equity-debt, capital receipt – revenue receipt and any expenses, deduction, relief, rebate,
  10. Inclusive definition – not limited to the aforesaid consequences.

In built checks and balances:

Detailed procedure for invoking GAAR is as under:

  1. The Assessing Officer ("AO") who is generally an officer of the rank of Income Tax Officer, Assistant Commissioner of Income Tax, Deputy Commissioner of Income Tax or Additional Commissioner of Income Tax at any stage of the assessment or reassessment before him, having regard to the material and evidence available, considers that it is necessary to invoke GAAR, he may make a reference to the Commissioner of Income Tax ("CIT").
  2. If CIT is of the opinion that GAAR provisions are required to be invoked, he shall issue a notice to the assessee, setting out the reasons and basis of such opinion, for submitting objections, if any and provide an opportunity of being heard to the assessee within maximum 60 days.
  3. Where the assessee does not file any objection to the notice, the CIT shall issue such directions as he deems fit in respect of declaration of the arrangement to be an IAA.
  4. In case the assessee objects to the proposed action and the CIT is satisfied, after having heard the assessee that GAAR provisions are not to be invoked, he shall by an order in writing communicate the same to the Assessing Officer with a copy to the assessee.
  5. If the CIT, after hearing the assessee, is not satisfied by the explanation of the assessee, then he shall make a reference to the Approving Panel (A Panel consisting of three members including chairperson who is or has been a judge of a High Court and One member shall be a member of Indian Revenue Service not below the rank of Chief Commissioner of Income Tax and One member shall be an academic or scholar having special knowledge of matters, such as direct taxes, business accounts and international trade practices) for the purpose of declaration of the arrangement as an IAA.
  6. The Approving Panel, on receipt of a reference from the CIT, after giving an opportunity of being heard to the assessee and to the Ld. AO, shall issue such directions, as it deems fit, in respect of the declaration of the arrangement as an IAA including specifying of the previous year or years to which such declaration of an arrangement as an IAA shall apply.
  7. The Approving Panel shall issue directions within a period of six months from the end of the month in which the reference was received from the CIT.
  8. No order of assessment or reassessment shall be passed by the Ld.AO without the prior approval of the CIT, if any tax consequences have been determined in the order under the provisions of Chapter X-A.
  9. The directions issued by the Approving Panel shall be binding on the assessee and the CIT and the income-tax authorities subordinate to him.

Conclusion:

It is apprehended that GAAR shall put too much of discretionary powers in the hand of tax administration in the name of plugging tax avoidance. As it gives unbridled power to the tax authorities to question any transactions or arrangements, it may result in increase in tax litigation. As the burden of proof is on assessee to prove that the object behind entering into a transaction or an arrangement is not to obtain tax benefit, the assessee will have to maintain proper business rationale and document the evidences to avoid such situations.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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