General Anti-avoidance Rule (GAAR)

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Context

• The Telangana High Court recently issued a ruling concerning the invocation of the General Anti-avoidance Rule (GAAR) by the revenue department against a taxpayer.

General Anti-Avoidance Rule (GAAR)

• The General Anti-Avoidance Rule (GAAR) is an anti-tax avoidance law in India to curb tax evasion and avoid tax leaks.
• It came into effect on 1st April 2017.
• The GAAR provisions come under the Income Tax Act, 1961.
• GAAR is a tool for checking aggressive tax planning especially that transaction or business arrangement which is/are entered into with the objective of avoiding tax.
• It is specifically aimed at cutting revenue losses that happen to the government due to aggressive tax avoidance measures practiced by companies.
• The Vodafone case, the biggest sensation of Indian Taxation history is one of the main reasons for the framework of GAAR.
• GAAR is effective from assessment year 208-19. It is meant to be applied to transactions which are prima facie legal but result in tax reduction. Broadly tax reduction can be of following three categories:

Understanding GAAR: When Does it Apply?

What Triggers GAAR?

1. Arrangement Declaration: GAAR applies to arrangements declared as Impermissible Avoidance Agreements (IAA) by taxpayers.
2. Non-obstante Clause: GAAR's applicability overrides other provisions, emphasizing its broad scope.

Impermissible Avoidance Arrangement (IAA) Explained

• GAAR aims to prioritize substance over form in transactions, focusing on the true intent behind an arrangement rather than its legal structure.
• For an arrangement to be classified as an IAA, it must meet specific criteria:
• Tax Benefit Purpose: The primary aim is to gain tax benefits.
• Non-Arm's Length Dealings: Creates unusual rights or obligations not typically found in transactions at Arm's Length Price.
• Abuse of Tax Laws: Results in the misuse or abuse of Income Tax Act provisions.
• Lack of Commercial Substance: Devoid of genuine commercial purpose, or carried out through unconventional means.

Onus of Declaration

• The revenue department bears the responsibility of identifying IAAs.
• Taxpayers have the right to contest the classification, presenting their arguments.
• GAAR isn't applied automatically; it requires specific action by the revenue department.

Response Dynamics

• If an arrangement is labeled as IAA, the burden shifts to the taxpayer to refute or accept the declaration.
• The process of declaring an arrangement as IAA follows a prescribed procedure under section 144BA.

Case Analysis

1. Case A: Tax mitigation strategies, like setting up businesses in underdeveloped areas for tax benefits, generally don't trigger GAAR.
2. Case B: Instances where transactions lack commercial substance and exploit tax exemptions are likely to fall under GAAR's purview.
3. Case C: Manipulating jurisdiction for tax avoidance without genuine commercial reasons warrants GAAR intervention.
4. Case D: Creating artificial subsidiaries solely for tax avoidance invokes GAAR due to the absence of genuine business purposes.

Conclusion

• GAAR's conditions are detailed, covering a wide range of tax reduction scenarios.
• Due diligence in analyzing transaction tax implications is crucial to avoid GAAR scrutiny.
• While GAAR aims to deter tax evasion, it faces criticism for its perceived harshness and potential misuse by tax authorities.

Criticism and Debate

• Some critics argue that GAAR's implementation is challenging and risks penalizing honest taxpayers.
• Debates surround GAAR's effectiveness and fairness, with ongoing discussions on its refinement and application.

PRACTICE QUESTION Q.   Assess the role of the General Anti-Avoidance Rule (GAAR) in India's tax framework. Evaluate its effectiveness in deterring tax evasion and fostering tax compliance. Highlight key challenges in its implementation and propose strategies for improving its efficiency and fairness.

SOURCE: PIB