Friday, May 18, 2018

GA-AR and sub- rules ...



 RElated >

https://www.facebook.com/swaminathanv3/posts/1681376445271968

Read (comment on ) 'AAR' s powers; and the Amendment of Sec 245 N (a)- Insertion of new clause  (iv) and of the Proviso (iii) to sec 245 R  !
  ..............

<> All On GA-AR >

> https://www.incometaxindia.gov.in/Acts/Finance%20Acts/2013/102120000000026793.htm

TEXT

Insertion of new Chapter X-A.
26. After Chapter X of the Income-tax Act, the following Chapter shall be inserted with effect from the 1st day of April, 2016, namely:—
'CHAPTER X-A
GENERAL ANTI-AVOIDANCE RULE
95. Applicability of General Anti-Avoidance Rule.—Notwithstanding anything contained in the Act, an arrangement entered into by an assessee may be declared to be an impermissible avoidance arrangement and the consequence in relation to tax arising therefrom may be determined subject to the provisions of this Chapter.
Explanation.—For the removal of doubts, it is hereby declared that the provisions of this Chapter may be applied to any step in, or a part of, the arrangement as they are applicable to the arrangement.
96. Impermissible avoidance arrangement.—(1) An impermissible avoidance arrangement means an arrangement, the main purpose of which is to obtain a tax benefit, and it—

(a)creates rights, or obligations, which are not ordinarily created between persons dealing at arm's length;
(b)results, directly or indirectly, in the misuse, or abuse, of the provisions of this Act;
(c)lacks commercial substance or is deemed to lack commercial substance under section 97, in whole or in part; or
(d)is entered into, or carried out, by means, or in a manner, which are not ordinarily employed for bona fide purposes.
(2) An arrangement shall be presumed, unless it is proved to the contrary by the assessee, to have been entered into, or carried out, for the main purpose of obtaining a tax benefit, if the main purpose of a step in, or a part of, the arrangement is to obtain a tax benefit, notwithstanding the fact that the main purpose of the whole arrangement is not to obtain a tax benefit.
97. Arrangement to lack commercial substance.—(1) An arrangement shall be deemed to lack commercial substance, if—

(a)the substance or effect of the arrangement as a whole, is inconsistent with, or differs significantly from, the form of its individual steps or a part; or
(b)it involves or includes—
(i)round trip financing;
(ii)an accommodating party;
(iii)
elements that have effect of offsetting or cancelling each other; or
(iv)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; or
(c)it involves the location of an asset or of a transaction or of the place of residence of any party which is without any substantial commercial purpose other than obtaining a tax benefit (but for the provisions of this Chapter) for a party; or
(d)it does not have a significant effect upon the business risks or net cash flows of any party to the arrangement apart from any effect attributable to the tax benefit that would be obtained (but for the provisions of this Chapter).
(2) For the purposes of sub-section (1), round trip financing includes any arrangement in which, through a series of transactions—
(a)funds are transferred among the parties to the arrangement; and
(b)such transactions do not have any substantial commercial purpose other than obtaining the tax benefit (but for the provisions of this Chapter),

without having any regard to—
(A)whether or not the funds involved in the round trip financing can be traced to any funds transferred to, or received by, any party in connection with the arrangement;
(B)the time, or sequence, in which the funds involved in the round trip financing are transferred or received; or
(C)the means by, or manner in, or mode through, which funds involved in the round trip financing are transferred or received.
(3) For the purposes of this Chapter, a party to an arrangement shall be an accommodating party, if the main purpose of the direct or indirect parti-cipation of that party in the arrangement, in whole or in part, is to obtain, directly or indirectly, a tax benefit (but for the provisions of this Chapter) for the assessee whether or not the party is a connected person in relation to any party to the arrangement.
(4) For the removal of doubts, it is hereby clarified that the following may be relevant but shall not be sufficient for determining whether an arrangement lacks commercial substance or not, namely:—
(i)the period or time for which the arrangement (including operations therein) exists;
(ii)the fact of payment of taxes, directly or indirectly, under the arrangement;
(iii)the fact that an exit route (including transfer of any activity or business or operations) is provided by the arrangement.
98. Consequences of impermissible avoidance arrangement.—(1) If an arrangement is declared to be an impermissible avoidance arrangement, then, the consequences, in relation to tax, of the arrangement, including denial of tax benefit or a benefit under a tax treaty, shall be determined, in such manner as is deemed appropriate, in the circumstances of the case, including by way of but not limited to the following, namely:—
(a)disregarding, combining or recharacterising any step in, or a part or whole of, the impermissible avoidance arrangement;
(b)treating the impermissible avoidance arrangement as if it had not been entered into or carried out;
(c)disregarding any accommodating party or treating any accommodating party and any other party as one and the same person;
(d)deeming persons who are connected persons in relation to each other to be one and the same person for the purposes of determining tax treatment of any amount;
(e)reallocating amongst the parties to the arrangement—
(i)any accrual, or receipt, of a capital nature or revenue nature; or
(ii)any expenditure, deduction, relief or rebate;
(f)treating—
(i)the place of residence of any party to the arrangement; or
(ii)the situs of an asset or of a transaction,

at a place other than the place of residence, location of the asset or location of the transaction as provided under the arrangement; or
(g)considering or looking through any arrangement by disregarding any corporate structure.
(2) For the purposes of sub-section (1),—
(i)any equity may be treated as debt or vice versa;
(ii) any accrual, or receipt, of a capital nature may be treated as of revenue nature or vice versa; or
(iii)any expenditure, deduction, relief or rebate may be recharacterised.
99. Treatment of connected person and accommodating party.— For the purposes of this Chapter, in determining whether a tax benefit exists,—
(i)
the parties who are connected persons in relation to each other may be treated as one and the same person;
(ii)
any accommodating party may be disregarded;
(iii)
the accommodating party and any other party may be treated as one and the same person;
(iv)
the arrangement may be considered or looked through by disregarding any corporate structure.
100. Application of this Chapter.—The provisions of this Chapter shall apply in addition to, or in lieu of, any other basis for determination of tax liability.
101. Framing of guidelines.—The provisions of this Chapter shall be applied in accordance with such guidelines and subject to such conditions, as may be prescribed.
102. Definitions.—In this Chapter, unless the context otherwise requires,—
(1)"arrangement" 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;
(2)"asset" includes property, or right, of any kind;
(3)"benefit" includes a payment of any kind whether in tangible or intangible form;
(4)"connected person" means any person who is connected directly or indirectly to another person and includes,—
(a)any relative of the person, if such person is an individual;
(b)any director of the company or any relative of such director, if the person is a company;
(c)any partner or member of a firm or association of persons or body of individuals or any relative of such partner or member, if the person is a firm or association of persons or body of individuals;
(d)any member of the Hindu undivided family or any relative of such member, if the person is a Hindu undivided family;
(e)any individual who has a substantial interest in the business of the person or any relative of such individual;
(f)a company, firm or an association of persons or a body of individuals, whether incorporated or not, or a Hindu undivided family having a substantial interest in the business of the person or any director, partner, or member of the company, firm or association of persons or body of individuals or family, or any relative of such director, partner or member;
(g)a company, firm or association of persons or body of individuals, whether incorporated or not, or a Hindu undivided family, whose director, partner, or member has a substantial interest in the business of the person, or family or any relative of such director, partner or member;
(h)any other person who carries on a business, if—
(i)the person being an individual, or any relative of such person, has a substantial interest in the business of that other person; or
(ii)the person being a company, firm, association of persons, body of individuals, whether incorporated or not, or a Hindu undivided family, or any director, partner or member of such company, firm or association of persons or body of individuals or family, or any relative of such director, partner or member, has a substantial interest in the business of that other person;
(5)"fund" includes—
(a)any cash;
(b)cash equivalents; and
(c)any right, or obligation, to receive or pay, the cash or cash equivalent;
(6)"party" includes a person or a permanent establishment which participates or takes part in an arrangement;
(7)"relative" shall have the meaning assigned to it in the Explanation to clause (vi) of sub-section (2) of section 56;
(8)a person shall be deemed to have a substantial interest in the business, if,—
(a)in a case where the business is carried on by a company, such person is, at any time during the financial year, the beneficial owner of equity shares carrying twenty per cent or more, of the voting power; or
(b)in any other case, such person is, at any time during the financial year, beneficially entitled to twenty per cent or more, of the profits of such business;

(9)"step" includes a measure or an action, particularly one of a series taken in order to deal with or achieve a particular thing or object in the arrangement;
(10)
"tax benefit" includes,—
(a)
a reduction or avoidance or deferral of tax or other amount payable under this Act; or
(b)
an increase in a refund of tax or other amount under this Act; or
(c)
a reduction or avoidance or deferral of tax or other amount that would be payable under this Act, as a result of a tax treaty; or
(d)
an increase in a refund of tax or other amount under this Act as a result of a tax treaty; or
(e)
a reduction in total income; or
(f)
an increase in loss,



in the relevant previous year or any other previous year;
(11)
"tax treaty" means an agreement referred to in sub-section (1) of section 90 or sub-section (1) of section 90A.'
<> RULES (TEXT)
https://www.incometaxindia.gov.in/communications/notification/920110000000000041.pdf

MASTER Note:

A) The foregoing provisions of the IT Act, - with a specially concerted focus on the selectively highlighted portions- mainly the words, concepts, expressions..- may have to be studied for an independent but eminent appraisal of the significance of each of them.

B) Such a study  may have to be necessarily done, conjointly with the other directly /indirectly related /connected scheme of things as embodied in the Act- mainly CHAPTER IX and X.

C )  Sub-sec (2), (2A) and (3) of sec 90, sec 90A, are required to be closely  read.

D) Not to oversight the latest innovative idea of PoEM ; which , as yet, has to given a throttle, for take-off.

May u Search > 
" PoEM" ?! And 
     

" BEPS"


< ARTICLES - in MLI - DEloitte

<http://www.bangaloreicai.org/images/icons/2018/Newsletter/BloreBr_NL_Mar%202018.pdf


ART >
MLI – THE NEW AGE
GLOBAL TAX AGREEMENT



Response e'mailed ( a GIST):

The efforts in the direction of effectuating the 'ideals', if not 'ideologies', behind BEPS could not even be regarded to be tantamount to a 'baby step'. And, going by limited past experience of anyone or more in international tax practice, none would, perhaps, united disagree that, any further progress to the D'day of fruition in that direction, - which principally is dependent upon each and every participating country to reconcile self and fully agree to all the stipulations in the MLI, even at the point in time when the first draft itself may be expected to be got ready and circulated,-it will be another few years in future.
May find somewhat a detailed account of personal reaction /views against 'BEPS' in Posts also on FB / Linkedin.
The last similarly mooted idea of "FACTA", as instantly recalled, had failed to take off, as projected or wished for, in limited circles.
In a manner of plain speaking, what needs a special noting is the penultimate paragraph related to non-signatories to MLI; implying status quo, with no more scope newly created, for a spate of fresh issues and inconclusive litigation to the end of horizon.


 ........
                  
<> As independently read and insight fully understood,  in one's perspective, these provisions are totally misconceived; so much so, are amenable to being palpably construed /misconstrued; that is, bristle with immense scope, and inevitable potential,  for  giving rise to a fresh spate of controversies, leading to a stimulated litigation, with no conclusiveness or a satisfactory resolution in the foreseeable future - to the end of horizon, so to say.

 In the context, none can fail to take a conscious note of but require to bear in mind a similar abhorrent situation that the 'TPR' , by itself, has created/brought into being, to survive , to eternity.

RESOURCE (A sample): 


A Compilation/collation of CASE LAW on 'TP'- need for Updating >>>>>>>>>>>>>>>>>


Lastly > 


Prin. Commissioner of Income Tax  vs. International Metro Civil Contractors- 7 th March,2018

Honda Motor Co. Limited, Japan  vs. ADIT, Noida- 14 th March, 2018

(for a report, search  >  https://resource.cdn.icai.org/50010cajournal-may18-28.pdf)


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