The issue of the General Anti Avoidance Rule (GAAR) has dominated the news recently and there are fears that GAAR will discourage foreign investment in India. However, tax avoidance can hinder public finance objectives and it is in this context GAAR was introduced in this year’s Budget. Last week, the Finance Minister pushed back the implementation of GAAR by a year. What is GAAR? GAAR was first introduced in the Direct Taxes Code Bill 2010. The original proposal gave the Commissioner of Income Tax the authority to declare any arrangement or transaction by a taxpayer as ‘impermissible’ if he believed the main purpose of the arrangement was to obtain a tax benefit. The 2012-13 Finance Bill (Bill), that was passed by Parliament yesterday, defines ‘impermissible avoidance arrangements’ as an arrangement that satisfies one of four tests. Under these tests, an agreement would be an ‘impermissible avoidance arrangement’ if it (i) creates rights and obligations not normally created between parties dealing at arm’s length, (ii) results in misuse or abuse of provisions of tax laws, (iii) is carried out in a way not normally employed for bona fide purpose or (iv) lacks commercial substance. As per the Bill, arrangements which lack commercial substance could involve round trip financing, an accommodating party and elements that have the effect of offsetting or cancelling each other. A transaction that disguises the value, location, source, ownership or control of funds would also be deemed to lack commercial substance. The Bill as introduced also presumed that obtaining a tax benefit was the main purpose of an arrangement unless the taxpayer could prove otherwise. Why? GAAR was introduced to address tax avoidance and ensure that those in different tax brackets are taxed the correct amount. In many instances of tax avoidance, arrangements may take place with the sole intention of gaining a tax advantage while complying with the law. This is when the doctrine of ‘substance over form’ may apply. ‘Substance over form’ is where real intention of parties and the purpose of an arrangement is taken into account rather than just the nomenclature of the arrangement. Many countries, like Canada and South Africa, have codified the doctrine of ‘substance over form’ through a GAAR – type ruling. Issues with GAAR A common criticism of GAAR is that it provides discretion and authority to the tax administration which can be misused. The Standing Committee responded to GAAR in their report on the Direct Taxes Code Bill in March, 2012. They suggested that the provisions should ensure that taxpayers entering genuinely valid arrangements are not harassed. They recommended that the onus should be on tax authorities, not the taxpayer, to prove tax avoidance. In addition, the committee suggested an independent body to act as the approving panel to ensure impartiality. They also recommended that the assessing officer be designated in the code to reduce harassment and unwarranted litigation. GAAR Amendments On May 8, 2012 the Finance Minister amended the GAAR provisions following the Standing Committee’s recommendations. The main change was to delay the implementation of GAAR by a year to “provide more time to both taxpayers and the tax administration to address all related issues”. GAAR will now apply on income earned in 2013-14 and thereafter. In addition, the Finance Minister removed the burden upon the taxpayer to prove that the main purpose of an alleged impermissible arrangement was not to obtain tax benefit. These amendments were approved with the passing of the Bill. In his speech, the Finance Minister stated that a Committee had also been formed under the Chairmanship of the Director General of Income Tax. The Committee will suggest rules, guidelines and safeguards for implementation of GAAR. The Committee is expected to submit its recommendations by May 31, 2012 after holding discussions with various stakeholders in the debate.
The Supreme Court passed its judgment in General Officer Commanding (Army) vs. CBI on May 01, 2012. The case addressed the issue of need for sanction to prosecute Army officers under the Armed Forces Special Powers Act (AFSPA). The case dealt with two instances of alleged fake encounters. Five people were killed by the Army in Assam in a counter insurgency operation in 1994. Another five people were killed in Jammu and Kashmir in March, 2000 in an encounter. In both cases, it was alleged that the Army officers had staged fake encounters. In both instances, the CBI was directed to investigate the matter. CBI claimed that the people who were killed were indeed victims of fake encounters. The CBI moved the court to initiate prosecution against the accused Army officers. The officers claimed that they could only be prosecuted with the prior sanction (permission) of the central government. The officers relied on provisions of the AFSPA,1958 and the Armed Forces J & K (Special Powers) Act, 1990 to support their claim. (See Notes for the relevant clauses) These provide that legal proceedings cannot be instituted against an officer unless sanction is granted by the central government. It must be noted that Army officers can be tried either before criminal courts or through court-martial (as prescribed under Sections 125 of the Army Act, 1950). The Army officers had appealed that both procedures require prior sanction of the government. The judgment touches upon various issues. Some of these have been discussed in more detail below:
Is prior sanction required to prosecute army officers for 'any' act committed in the line of duty? The judgment reiterated an earlier ruling. It held that sanction would not be required in 'all' cases to prosecute an official. The officer only enjoys immunity from prosecution in cases when he has ‘acted in exercise of powers conferred under the Act’. There should be 'reasonable nexus' between the action and the duties of the official. The Court cited the following example to highlight this point: If in a raid, an officer is attacked and he retaliates, his actions can be linked to a 'lawful discharge of duty'. Even if there were some miscalculations in the retaliation, his actions cannot be labeled to have some personal motive. The Court held that the AFSPA, or the Armed Forces (J&K) Special Powers Act, empowers the central government to ascertain if an action is 'reasonably connected with the discharge of official duty' and is not a misuse of authority. The courts have no jurisdiction in the matter. In making a decision, the government must make an objective assessment of the exigencies leading to the officer’s actions. At what stage is sanction required? The Court ruled that under the AFSPA, or the Armed Forces (J&K) Special Powers Act, sanction is mandatory. But, the need to seek sanction would only arise at the time of cognizance of the offence. Cognizance is the stage when the prosecution begins. Sanction is therefore not required during investigation. Is sanction required for court-martial? The Court ruled that there is no requirement of sanction under the Army Act, 1950. Hence, if the Army chooses, it can prosecute the accused through court-martial instead of going through the criminal court. The Court noted that the case had been delayed for over a decade and prescribed a time bound course of action. It asked the Army to decide on either of the two options - court martial or criminal court - within the next eight weeks. If the Army decides on proceedings before the criminal court, the government will have three months to determine to grant or withhold sanction. Notes Section 6 of the AFSPA, 1958: "6. Protection to persons acting under Act – No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act." Section 7 of the Armed Forces (J&K) Special Powers Act, 1990: "7. Protection of persons acting in good faith under this Act. No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act."
