One of the major changes implemented by the Finance Act has been the introduction of the General Anti-Avoidance Rules (GAAR). The Government has recently issued draft GAAR Guidelines in this connection, which can be downloaded from here. It is proposed to introduce a monetary threshold for invocation of the GAAR provisions, and time limits (such as time limits for making references to the...
Depreciation and Sale-and-Lease-back Transactions
One of the most important deductions permissible under income tax law in relation to capital assets is depreciation. Under the general scheme of the Income tax Act, particularly section 32, depreciation is allowed to an assessee who is the owner of a capital asset used for the purposes of business. The criterion of “ownership” is given a slightly more liberal scope under tax law. Assessees can...
What is “immovable property”? The law relating to fixtures to land and buildings: Part II
(The following post has been contributed by Vinod Kothari and Nidhi Ladha of Vinod Kothari & Company. The authors can be contacted at [email protected] and [email protected] respectively. This is a continuation from a previous post where the authors discuss general principles. Here, they discuss specific cases and conclude) Interesting recent cases pertaining to immovable...
What is “immovable property”? The law relating to fixtures to land and buildings: Part I
(The following post, which deals with a continuingly vexed question of law, has been contributed by Vinod Kothari and Nidhi Ladha of Vinod Kothari & Company. The authors can be contacted at [email protected] and [email protected] respectively) At first glimpse, the question –what is an immovable property – sounds too basic to warrant any attention. Land and buildings are...
Miscellaneous
1. Further Liberalization of ECB Policy Given the ailments afflicting the civil aviation sector in India, the Reserve Bank of India (RBI) has allowed external commercial borrowings (ECBs) in that sector even where the end-use of funds is for working capital requirements. This is permissible under the approval route, and is subject to several...
The Direct Tax Proposals in Budget 2012
Unsurprisingly, the retrospective amendment proposed to be made to sections 2 and 9 of the Income Tax Act has dominated analysis of the direct tax proposals in the budget. There is no doubt that these amendments, and particularly the validation clause in cl 113 of the Finance Bill, may be vulnerable to a constitutional challenge, and this is a subject we will discuss in more detail. Budget 2012...
Miscellaneous
1. Reactions to Vodafone The discussions on the Vodafone judgment of the Supreme Court continue to raise questions regarding tax avoidance, and also aspects of corporate law (distinguishing the sale of shares and sale of assets). While Prashant Bhushan has raised questions regarding the judgment on several counts (here and here), Arvind Datar...
The Bombay High Court on applying Vodafone to Sham Transactions
In Killick Nixon v DCIT, decided on 6 March 2012, a Division Bench of the Bombay High Court (Dr DY Chandrachud and MS Sanklecha JJ.) has considered the application of the guidance given by the Supreme Court in Vodafone to a transaction that was found at first instance to constitute a sham. The attempt by the taxpayer in this case is reminiscent of the tax avoidance transactions that shaped...
Part II – An Analysis of the Supreme Court’s judgment in Vodafone
In our first post on the Vodafone judgment, we set out the issues of law arising from the Court’s findings, and discussed two of those – the approach to tax avoidance and the meaning of controlling interest. This post considers two other important issues – India’s approach to the corporate veil, and the scope the “extinguishment” provision under section 2(47) of the Income Tax Act, 1961...
An Analysis of the Supreme Court’s judgment in Vodafone – Part I
In our post on the judgment of the Bombay High Court, we expressed the hope that the Supreme Court would take a different view. That the Court has now done so has been welcomed as much needed respite in bad times. Even more importantly, it is heartening that the Court has taken what it is submitted is the correct view especially on the facts of Vodafone’s case. But from...
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