About GAAR

What is full form of GAAR ?  or What is GAAR ?

 The full form of GAAR is : General Anti-Avoidance Rules

 

What is GAAR in simple terms ?

Tax Avoidance is an area of concern across the world.  The rules are framed in different countries to minimize such avoidance of tax.  Such rules in simple terms are known as  ” General Anti Avoidance Rules ”  or GAAR.   Thus GAAR is a set of general rules enacted so as to check the tax avoidance.

 

Why News for GAAR has been prominent in India in recent times ?

News for GAAR has been in prominence in last few years as Indian Government has taken initiative to introduce GAAR or General Anti Avoidance Rules with a view to increase tax collections.

 

Background for GAAR :

Lord Tomlin has well said “Every man is entitled to order his affairs so that tax attaching under the appropriate Acts is less than it otherwise would be” (IRC v Duke of Westminster).   People adopt various methods so that they can reduce their total tax liability.  

The methods adopted to reduce their tax liability can be broadly put into four categories : “Tax Evasion”;  “Tax Avoidance”,  “Tax Mitigation” and “Tax Planning”.  The difference between these four methods some times becomes blurred  owing to the perception of the tax authorities and / or tax payer.    

GAAR refers to the second category i.e. tax avoidance.

 

What is Difference between GAAR and SAAR ?

Anti Avoidance Rules are broadly divided into two categories namely “General” and “Specific”.   Thus, legislation dealing with “General” rules are termed as GAAR, whereas legislation dealing with “Speicifc  avoidnace are termed as “SAAR”

In India till recently SAAR was in vogue i.e. laws were amended to plug specific loopholes as and when they were noticed or were misused enmasse.  However, now Indian tax authorities wants to move towards GAAR but are facing severe opposition as tax payers fear that these will be misused by tax authorities by giving arbitrary and wide interpretations.  We can say SAAR being more specific provide certainty to taxpayers where as GAAR being general in nature can be misused and is subject to arbitrary interpretation by tax authorities.

 

 GAAR Definition :

 GAAR is a concept which generally empowers the Revenue Authorities in a country to deny the tax benefits of transactions or arrangments which do not have any commercial substance or consideration other than achieving the tax benefit.    Whenever revenue authorities question such transactions, there is a conflict with the tax payers.   Thus, different countries started making rules so that tax can not be avoided by such transactions.   Australia introduced such rules way back in 1981.  Later on countries like Germany, France, Canada, New  Zealand, South Africa etc too opted for GAAR.   However, countries like USA and UK have adopted a cautious approach and have not been aggressive in this regard.

 

Thus, in nutshell we can say that GAAR usually consists of a set of broad rules which are based on general principles to check the potential avoidance of the tax in general, in a form which can not be predicted and thus can not be provided at the time when it is legislated.

 

GAAR in India

 

In India, the real discussions on GAAR came to light with the release of draft Direct Taxes Code Bill (popularly known as DTC 2009) on 12th August 2009.  It contained the provisions for GAAR.  Later on the revised Discussion Paper was released in June 2010, followed by tabling in the Parliament on 30th August, 2010, a formal Bill to enact the law known as the DirectTaxes Code 2010.  The same was to be made applicable wef 1st April, 2012.   However, owing to negative publicity and pressures from various groups, GAAR was postponed to at least 2013, and was likely to be introduced alongwith the Direct Tax Code (DTC) from 1st April 2013.   Moreover, an Expert Committee has been set by Prime Minister (Manmohan Singh) in July 2012 to vet and rework the GAAR guidelines issued in June 2012.   The latest reports (September 2012) indicates, it may not be implemented even for 3 years i.e. this will be postponed for 3 years (2016-17).   Some of recent developments about GAAR are :-

   

    (a) 16th March, 2012 : Finance Minister, Pranab Mukherjee takes a tough stand and announces that the government will crack down on tax avoidance effective from fiscal year 2012-13

    (b) 7th May, 2012 : Finance Minister, Pranab Mukherjee forced to eat his words and agreed to defer GAAR by a year as his announcements spooked oversea investors

    (c) 28th June, 2012 : Finance Ministry releases first draft on GAAR;   There is wide criticism of the provisions.

    (d) 14th July, 2012 : PM, Manmohan Singh, forms review committee under Parthasarathi Shome, for preparing a second draft by 31st August and final guidelines by 30th September, 2012

 

    (e) 1st September, 2012 : Shome Committee recommends to defer GAAR by three years.   It also recommends some more investor friendly measures

    (f) 14th January, 2013 : GoI partially accepts the recommendations of Shome Committee and has decided to defer the same for 2 years and will now be effective from the year 2016-17

 

WHEN WOULD GAAR APPLY?
If investment
date is…
and transaction
date is…
GAAR
would…
Before Aug 30, ’10 Before Apr 1, ‘16 Not apply
Before Aug 30, ’10 After Apr 1, ‘16 Not apply
After Aug 30, ’10 Before Apr 1, ‘16 Not apply
After Aug 30, ’10 After Apr 1, ‘16 Apply
After Apr 1, ’16 After Apr 1, ‘16 Apply

 

The modified GAAR provisions say an arrangement the main purpose of which is to obtain tax benefit would be considered impermissible. The earlier provisions considered impermissible an arrangement “one of the main purposes” of which was tax benefit. It would apply when the tax benefit in an arrangement is more than Rs 3 crore.

 

 

 

What was the Basic Criticism of GAAR ?  Why GAAR is dreaded ?

 

Many provisions of GAAR have been criticised by various people.   However, the basic criticism of GAAR provisions is that it is considered to be too sweeping in nature and there was a fear (considering poor record of IT authorities in India) that Assessing Officers will apply these provisions in a routine manner (or read misuse) and harass the general honest tax payer too.   There is only a fine distinction between Tax Avoidance and Tax Mitigation, as any arrangement to obtain a tax benefit can be considered as an impermissible avoidance arrangement by the assessing officer.   Thus, there was a hue and cry to put checks and balances in place to avoid arbitrary application of the provisions by the assessing authorities.   It was felt that there is a need for further legislative and administrative safeguards and at least a minimum threshold limit for invoking GAAR should be introduced so that small time tax payers are not harassed.

 

Two Examples to Understand GAAR provisions : (Source GAAR Committee)

Example 1:

Facts: A business sets up an undertaking in an under developed area by putting in substantial investment  of  capital,  carries  out  manufacturing  activities  therein  and  claims  a  tax deduction  on  sale  of  such  production/manufacturing.  Is  GAAR  applicable  in  such  a  case ?

Interpretation: There is an arrangement and one of the main purposes is a tax benefit. However, this is a case of tax mitigation where the tax payer is taking advantage of a fiscal incentive offered  to  him  by  submitting  to  the  conditions  and  economic  consequences  of  the provisions in the legislation e.g., setting up the business only in the under developed area. Revenue would not invoke GAAR as regards this arrangement.

 

Example 2:

Facts: A business sets up a factory for manufacturing in an under developed tax exempt area. It then diverts its production from other connected manufacturing units and shows the same as manufactured in the tax exempt unit (while doing only process of packaging there). Is GAAR applicable in such a case ?

Interpretation: There is an arrangement and there is a tax benefit, the main purpose or one of the main purposes  of  this  arrangement  is  to  obtain  a  tax  benefit.  The  transaction  lacks commercial substance and there is misuse of the tax provisions. Revenue would invoke GAAR as regards this arrangement.

 

How Far Are the Recommendations of the Shome Commitee Accepted (As per statement of FM on 14th January 2013) :

 

(a) With the deferment of GAAR implementation by 2 years, the Government has also accepted most of the Shome Commitee recommendations, which was set up to look into the grievances on GAAR provisions.

FM  issued a statement on 14th January, 2013 that the GAAR provisions shall now apply only to arrangements having tax benefit as ‘the main purpose’ as against ‘one of the main purposes’ as per the extant GAAR provisions. This could provide substantial relief since it is expected that only those arrangements which are completely devoid of a commercial substance shall attract GAAR.

 

(b) A threshold of Rs 3 crores of tax benefit has been fixed for setting in GAAR.

(c) The government has also soothened the nerves of anxious foreign investors by excluding investments made before August 30, 2010 from the clutches of GAAR.

(d) Moreover, now the  GAAR provisions is exclusion of non resident investors in an FII structure in respect of investments in Indian listed securities and to FIIs not opting for tax treaty benefits.

 

(e) The statement of FM has also indicated that in a given situation either Specified anti avoidance rules (‘SAAR’) or GAAR will apply and not both.

(f) Also certain other key clarifications like same income shall not get taxed twice under the GAAR regime, advance ruling can be sought on applicability of GAAR to an arrangement, etc. have been provided in FM’s statement.

(g) GAAR approving panel would now include an expert member on matters such as direct taxes, business accounts and international trade practices.
Thus, we can say that statement of FM has given some solace to the investor community, but certain grey areas remain like applicability of GAAR provisions to investments made in the interim period from August 2010 to April 2016, etc.  The ministry has also not given its verdict on the expert committee’s certain other key recommendations like prescription of negative list of transactions for non applicability of GAAR,  GAAR should not be applied to examine the genuineness of tax residency of Mauritius entities, etc.

The investor community would now eagerly await to see how the government eventually gives shape to this landmark development in the history of Indian tax diaspora. As they say, devil lies in the details.

 

 

GAAR vs Union Budget 2013-14 (Presented on 28th Feb 2013):

Para 150 of the Union Budget reads as under : “Hon’ble Members are aware that the Finance Act, 2012 introduced the General Anti Avoidance Rules, for short, GAAR.  A number of representations were received against the new provisions.  An expert committee was constituted to consult stakeholders and finalise the GAAR guidelines.  After careful consideration of the report, Government announced certain decisions on 14.1.2013 which were widely welcomed.  I propose to incorporate those decisions in the Income-tax Act.  The modified provisions preserve the basic thrust and purpose of GAAR.  Impermissible tax avoidance arrangements will be subjected to tax after a determination is made through a well laid out procedure involving an assessing officer and an Approving Panel headed by a Judge.  I propose to bring the modified provisions into effect from 1.4.2016.”.  

 

Thus, we can say that as per FM statement in the Budget, GAAR will become effective wef 1.4.2016, and changes proposed in January 2013 will be now incorporated in the Income Tax Act.

 

 

What is Grandfather clause :

Grandfather clause is a situation in which an old rule continues to apply to some existing situations, while a new rule will apply to all future situations. Frequently, the exemption is limited; it may extend for a set period of time, or it may be lost under certain circumstances.   An exemption that allows persons or entities to continue with an activity they were engaging in before but the same activity is not allowed to new entities. For example, a car manufacturer is allowed to produce cars with certain environment norms, but new entities are required to fullfil strictly norms. 

 

 

0 replies

Leave a Reply

Want to join the discussion?
Feel free to contribute!

Leave a Reply

Your email address will not be published. Required fields are marked *

Comment moderation is enabled. Your comment may take some time to appear.