AZADI BACHAO ANDOLAN CASE PDF

Is McDowell then the 'Law of the Land'? Are the observations of Justice Srikrishna in Azadi 'perverse', as the Solicitor General vehemently contended during the Vodafone case? Will the Vodafone ruling settle the McDowell vs Azadi debate or should the SC appoint a larger, 7 judge bench to settle the 'tax planning vs tax evasion' debate once and for all? That cannot be said in the case of Mauritius companies of the type Azadi Bachao was dealing with. Again the Supreme Court has also said that there could be Investment and other objectives which a country consciously wishes to devise through tax treaty benefits.

Author:Gok Sarn
Country:Montenegro
Language:English (Spanish)
Genre:Science
Published (Last):5 February 2005
Pages:246
PDF File Size:9.56 Mb
ePub File Size:7.36 Mb
ISBN:591-2-39417-965-9
Downloads:15173
Price:Free* [*Free Regsitration Required]
Uploader:Maurr



Is McDowell then the 'Law of the Land'? Are the observations of Justice Srikrishna in Azadi 'perverse', as the Solicitor General vehemently contended during the Vodafone case? Will the Vodafone ruling settle the McDowell vs Azadi debate or should the SC appoint a larger, 7 judge bench to settle the 'tax planning vs tax evasion' debate once and for all?

That cannot be said in the case of Mauritius companies of the type Azadi Bachao was dealing with. Again the Supreme Court has also said that there could be Investment and other objectives which a country consciously wishes to devise through tax treaty benefits. In these circumstances it would not be proper to squarely apply a legal ratio to a situation where there are different objectives or facts being dealt with by a 2 judge bench and a larger bench, especially since McDowell was dealing with a domestic sale transaction.

If at all the McDowell ratio is to be applied to a cross border transaction, it should be debated and dealt with by a larger bench after considering treaty objectives and investment realities in a complex, competing world of cross border investments.

Tax planning is not tax evasion. Tax planning is infact an acceptable tax avoidance. Tax avoidance is legal but may not be liked by the Revenue. Tax evasion is illegal and against the law There is no single rule across different jurisdictions It can be tax planning, unacceptable tax avoidance or even tax evasion!

There is nothing wrong also in that since a man is the best creation of Almighty who has endowed in him the best faculties that Almighty himself has. In the last few years, globally as well as in India, the issue of what constitutes tax avoidance has increasingly gained attention. While different Courts have expressed their views in different ways, the one core thread is that the transaction must be a real commercial transaction, as opposed to a contrived one; equally, if the transaction is not contrived and indeed is genuine, then adopting a tax efficient means of consummating a transaction should not constitute tax avoidance.

The AAR ruling in the Sanofi case has triggered the McDowell versus Azadi Bachao debate, but given the impending ruling in the Vodafone case, it would not be appropriate to comment on this aspect; however, one does believe that both these decisions are reconcilable and were based on different facts and in different context. In so far as the need to settle the debate, one needs to first wait to see what the Vodafone ruling says and hopefully that should provide a significant amount of clarity, given the extensive arguments.

We in India have a tremendous penchant for interpreting words and sentences occurring in a judgement and creating a new controversy with a life of its own. Given that the Judgements are so long and drafting is not getting any better, we will keep on creating new controversies all the time.

Even when there is no controversy.. I am sure that there will be instances where assessees would have tried likewise to split hairs in interpreting Supreme Court judgements. Certainty in tax laws, therefore, is a function of how tax laws get implemented. There is a limit upto which Courts can go on clarifying positions as each clarification can itself be a subject matter of interpretation.

At this rate, each Judgement of the Supreme Court will need a Full Bench and even that Judgement will be a subject matter of interpretation and controversy. A later Supreme Court Judgement should View more. A later Supreme Court Judgement should ordinarily hold fort unless it has overlooked an earlier judgement. For an AAR Bench to hold that a Supreme Court Judgement is erroneous because it overlooked an earlier judgment of a larger bench is not taking things anywhere further.

Both Judgements operate in their own field and Azadi Bachao was delivered after expressly discussing McDowell. What we need is a willingness to work in a disciplined manner and consequences of not doing so. If that happens, larger benches will not be necessary. Else, they will be a norm.

Skip to main content. Taxring Topic. Sitemap Privacy Policy Disclaimer.

COUPLEUR HYDRAULIQUE VOITH PDF

Indian update: Supreme Court allows treaty benefits to Mauritian residents

Please contact customerservices lexology. JSH Mauritius Limited Taxpayer , is a company incorporated in Mauritius engaged in the business of investment and financing activities, having no permanent establishment or business presence in India. The Taxpayer had approached the AAR to ascertain whether it was entitled to beneficial provisions namely, Article 13 4 of the Treaty in relation to sale of TIL shares in order to be exempt from paying any capital gains tax in India. The Revenue put forth the following key contentions to argue that the Taxpayer should be taxed in India in relation to capital gains arising from the sale of TIL shares:. The HC concluded that the AAR had considered all relevant aspects of the matter in arriving at a just conclusion and that the Treaty had also been rightly interpreted. The HC noted that the long period of holding TIL shares and reinvesting the proceeds in another Indian company suggested the bona fide of the Taxpayer.

FT2232 PDF

Court rules in favor of Mauritian resident company

In the administrative court found that Google France did not have the capability to carry out the advertising activities on its own. Google Ireland Limited therefore did not have a permanent establishment in France. The same conclution […]. The issue in the case before the Administrative Court of Appeal of Paris was whether an Irish company had a PE in France in a situation where employees of a French company in the same group carried out marketing, representation, management, back office and administrative assistance services on behalf of the group. Dell Ireland, operates as distributor for most of Europe.

GYEEDA REPORT PDF

Mondaq uses cookies on this website. By using our website you agree to our use of cookies as set out in our Privacy Policy. JSH Mauritius Limited Taxpayer , is a company incorporated in Mauritius engaged in the business of investment and financing activities, having no permanent establishment or business presence in India. The Taxpayer had approached the AAR to ascertain whether it was entitled to beneficial provisions namely, Article 13 4 of the Treaty in relation to sale of TIL shares in order to be exempt from paying any capital gains tax in India. The AAR ruled in favour of the Taxpayer and observed that it was not a 'shell company' and held that the transaction was not designed to avoid tax. Importantly, the Revenue filed the writ petition after a delay of 8 eight months from the date of the AAR's order.

Related Articles