The balancing act that is GAAR

Date posted: Monday 23 October 2017

With the goods and services tax (GST) having completed the first 100 days, it is time for taxpayers to turn their focus towards another “G”—General Anti-Avoidance Rules (GAAR), which has been made effective from 1 April 2017 in Indian tax law, and which is the other watershed event in the evolution of India’s tax policy and legislation. “Judicial” GAAR has been around and applied in the past in India, but the introduction of the “legislative” GAAR gives a new twist to this interesting topic of tax discussion, and requires both taxpayers and tax practitioners to realign their approach to tax planning. There is a line, at times thin, dividing the case of a taxpayer availing of tax benefits legally available under the law from that of what appears to be an artificial transaction undertaken with the main purpose of tax avoidance. Given the long disposal time at present for cases with the Authority for Advance Ruling, a fast-track mechanism for pre-clearance of transactions would aid in reducing the inherent uncertainty in these provisions. As is commonly understood, GAAR applies to an arrangement where the main purpose is to obtain a tax benefit, and which, among others, lacks commercial substance. All in all, it will be an interesting road ahead where the key aspect for all stakeholders would be to follow the intent of the GAAR provisions in their true spirit.

(Live Mint)

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