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Analysis of GAAR Provisions and Recommendations of the Shome Committee
by
Rajesh Goyal


Analysis of the GAAR provisions
4.1 The provisions relating to GAAR appear in
Chapter X-A (sections 95 to 102) of the Act. The
provisions allow the tax authority to, notwithstanding
anything contained in
the Act, declare an arrangement which the
assessee has entered into, as an impermissible
avoidance arrangement. Once an arrangement has
been declared as an impermissible avoidance
arrangement, the consequence as regards the tax
liability would also be determined.
4.2 The provisions give a wide definition
of the term arrangement. An arrangement
means any step in or a part or whole of any transaction, operation, scheme, agreement or
understanding, whether enforceable or not. It also includes the alienation of any property
in such a transaction etc. The onus of proving that there is an impermissible avoidance
arrangement is on the Revenue.
4.3 An arrangement would be an impermissible avoidance arrangement if,
(a) its main purpose is to obtain a tax benefit, and,
(b) it also has one of the following characteristics:
(i) it creates rights and obligations, which are not normally created
between parties dealing at arms length;
(ii) it results in misuse or abuse of the provisions of the tax law;
(iii) it lacks commercial substance;
(iv) it is carried out by
means or in a manner which is normally not
employed for an
authentic (bona fide) purpose.


A tax benefit has been defined to
GAAR-Analysis -Shome Committee http://www.allbankingsolutions.com/Banking-Tutor/GAAR-Analysis.htm
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mean
(i) a reduction or avoidance or
deferral of tax or other amount
payable under
the Act or as a result of a tax
treaty;
(ii) an increase in a refund of
tax or other amount that would be
payable
under the Act or as a result of
tax treaty; or
(iii) a reduction in total income
including an increase in loss.
The term tax benefit would be the benefit,
quantified in terms of tax liability, arising to
any party to the arrangement on account of such arrangement.






4.4 The onus of proving that
(A) there is an arrangement,
(B) the arrangement leads to a tax benefit,
(C) the main purpose or one of the main purposes of the arrangement
is to obtain a tax benefit, and
(D) the arrangement has one of the characteristics listed at (i) to (iv) at
(b) of 4.3 above
is on the revenue.

(Source : GAAR Committee Report)


Recommendations of Shome Committee:

Draft Recommendations : These will be updated after complete report of Committee is published


(A) NEWS FOR GAAR : (1st October, 2012) Final guidelines for GAAR by month-end (October,
2012), says Chidambaram

(B) News for GAAR : (17th November, 2012) : GAAR Amendments Finalized and waiting PMO
approval : FM P. Chidambaram



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