In a recent ruling in the case of Ardex Investments Mauritius Ltd.1 (‘the . the case of Azadi Bachao Andolan (above), no further enquiry on the. Reliance was placed on the Supreme Court rulings in the cases of Azadi Bachao. Andolan and Vodafone6. • The majority of the judges in the. The HC has followed the ruling of the Apex Court in the landmark case of Union of India v. Azadi Bachao Andolan [[] Taxman

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I have carefully considered the submission of the appellant, the penalty order and the facts of the case. And as far as this country is concerned, the observations of Shah, J. He points out that the Committee on Fiscal Affairs of the OECD in its report styled as “Conduit Companies Report ” recognised that a conduit company would generally be able to claim treaty benefits.

Section 90which delegates powers to the Central Government, has not been challenged before us, and, therefore, we must proceed on the footing that the section is constitutionally valid. Debts Recovery Appellate Tribunal. In our view, the recommendations of the Working Group of the JPC are intended for Parliament to take appropriate action. For example, even in fiscal legislation like the Central Excise Act and Sales Tax Actthere are provisions for exemption from the levy of tax.

Thus, there is a need to understand the concept of tax avoidance and its jurisprudence as it has evolved in India, which is done in the next part of this article. In order to know what he means by ‘real’, one must first identify the concept inflation adjustment by reference to which he is using the word.

Debts Recovery Appellate Tribunal 0. The fact that Belgium did not choose to tax them was held to be totally irrelevant. The Canadian Revenue took the position that there was a deemed disposition of the shares on the bacaho of the tax payer and capital gains tax was chargeable on account of the deemed disposition.

The respondents contend that a tax treaty entered into within the umbrella of section 90 of the Act is essentially delegated legislation; if it involves granting of exemption from tax, it would amount andolah delegation of legislative powers, which is bad.

International Tax Avoidance Issues: An Analysis of the Indian Law and Policy

This well settled principle has been re-stated by the Azaddi Court in the case of Union of India vs. The names of these organizations are also not revealed due to aforesaid reasons. Others TM to find other cases containing similar facts and legal issues. Lord Nolan in IRC v. We think that this submission is sound and needs to be accepted. In the United States such a treaty becomes a part of municipal law upon ratification by the Senate.


Whether the Indo-Mauritius DTAC ought to have been enunciated in the present form, or in any other particular form, is none of our concern. Premier Shipping Agencies v.

However, in its later decisions viz. This observation has formed the bone of contention in the future cases, and a lot of misgivings have been attributed to it for want of understanding its meaning in proper context.

Shirke And Another TM to find other cases containing similar facts and legal issues. Part V of the First schedule enumerates the list of tax incentive companies and item 16 is: Placing strong reliance on McDowell it is argued that McDowell has changed the concept of fiscal jurisprudence in this country and any tax planning which is intended to and results in avoidance of tax must be struck down by the Court.

Sub-section 2 of Section provides for the exercise of power in certain special cases and enables the CBDT, if it considers it necessary or expedient so to do for the purpose of proper and efficient management of the work of assessment and collection of revenue, to issue general or special orders in respect of any class of incomes of class of casessetting forth directions or instructions as to the guidelines, principles or procedures to be followed by other income-tax authorities in the discharge of their work relating to assessment or initiating proceedings for imposition of penalties.

Union Of India And Anr vs Azadi Bachao Andolan And Anr on 7 October,

He had earned some money by boxing in the United States for which he was called upon to pay tax. Visakhapatnam Port Trust held that provisions of section 4 and 5 of Income-tax Act are expressly made ‘subject to the provisions of the Act’ which means that they are subject to provisions of section Central Electricity Regulatory Commission 0. We are, therefore, unable to accept the contention of the respondents that the DTAC is ultra vires the powers of the Central Government under Section 90 on account of its susceptibility to ‘treaty shopping’ on behalf of the residents of third countries.

These decisions have been considered in Union of India v. Now let us turn to the next Sup. Nevertheless, the provisions of this Treaty, and in particular Article VI and VII, shall apply to matters of taxation only with respect to the following:. The court must then look at the end result.

Thus the authority which wields the power for its own advantage under the Act is given the right to forgo the advantage when required to wield it in a manner it considers just by relaxing the rigour of the law or in other permissible manners as laid down in section. In Arabian Express Line Ltd. The speeches in the Ramsay case and subsequent cases contain numerous references to the ‘real’ nature of the transaction and to what happens in ‘the real world’.


The term “liable to tax” should be defined to say that there should be tax laws in force in the other State, which provides for taxation of such person, irrespective that such tax fully or partly exempts such persons from charge of tax on any income in any manner.

We are afraid that it was impermissible for the High Court to do so.

Of recent years much ingenuity has been expended in certain quarters in attempting to devise methods of disposition of income by which those who were prepared to adopt them might enjoy the benefits of residence in this country while receiving the equivalent of such income, without sharing in the appropriate burden of British taxation. However, despite merits of the Vodafone judgment, unfortunately it lost the opportunity to correctly appreciate this aspect, and committed the same mistake as the Azadi Bachao Andolan court.

District Consumer Disputes Redressal Commission 0. On the other hand, if a taxpayer at assessment time converts taxable property into non-taxable property for the purpose of avoiding taxation, without intending a permanent change, and shortly after the time for assessment has passed, reconverts the property to its original form, it is a discreditable evasion of the taxing laws, a fraud, and will not be sustained. The provisions of Sections 4 and 5 of the Act are expressly made “subject to the provisions of this Act”, which would include Section 90 of the Act.

In the light of the observations of the Supreme Court in the case of Azadi Bachao suprano fault can be found with the action of RPL and its In view of the judgment of the apex court in The test of residence mentioned above would also apply in respect of income from capital gains on sale of shares. Rule in McDowell The respondents strenuously criticized the act of incorporation by FIIs under the Mauritian Act as a ‘sham’ and ‘a device’ actuated by improper motives.

Both the learned Judges of the Bench of this Court gave separate opinions. National Company Law Appellate Tribunal 0. Assam High Court 0.