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DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY


LUCKNOW

SEMESTER V
(2015-16)
INTERPRETATION OF STATUTES

PROJECT ON

FROM MCDOWELL TO VODAFONE: THE FINE LINE BETWEEN TAX


EVASION AND TAX PLANNING

SUBMITTED BY

S UBMITTED TO

GARIMA PARAKH
HUSSAIN

M RS. SAMREEN

B.A.LLB (H ON) SEMESTER IV


(LAW)
ROLL NO. 57

A SST. PROFESSOR

ACKNOWLEDGEMENT

I would like to extend my sincere thanks to


My teacher and my mentor Mrs. Samreen Hussain for giving me this
wonderful opportunity to work on this project and for his able guidance
and advice,
Vice Chancellor, Dr. Gurdeep Singh Sir and Dean (Academics), Professor
C.M. Jariwala for their encouragement and Enthusiasm;
My seniors for sharing their valuable tips;
And my classmates for their constant support.

TABLE OF CONTENTS

1. INTRODUCTION....1
2. TAX PLANNING AND EVASION2
[1.1] Tax avoidance by large corporations..2
[1.2] Rules for interpretation of taxing statutes: When tax avoidance becomes
evasion.4
3. MCDOWELL V. COMM TAX OFFICER: CASE ANALYSIS..6
[2.1] Brief facts and judgment of the case...6
[2.2] Decision in Azadi Bachao Andolan case and the conflict.7
4. VODAFONE INTERNATIONAL HOLDINGS LTD V. UOI: CASE ANALYSIS..8
[3.1] Brief facts and judgment of the case..8
[3.2] Detailed analysis of tax evasion with respect to income tax provisions9
[3.3] Extension of McDowells principle of purposive construction10
5. CONCLUSION...11

INTRODUCTION
The rue in McDowell & Co. Ltd. v. Commercial Tax Officer 1 has been the source of significant
controversy in the area of tax governance. While on one hand it may seem to have changed the face
of tax jurisprudence, some detractors and writers are of a different opinion that it is a mere judicial
aberration in the otherwise clear and reasonable exposition of fiscal principles by the Supreme
Court. Judicial pronouncements after McDowell have only increased the confusion as to what is
permissible in the determination of tax liability through the transactions entered into by the
assessee. Therefore, the fundamental question is where to draw the line between legitimate tax
planning and tax avoidance within the framework of the law, and whether what the court sought to
accomplish and what it actually did. The contention raised by McDowell in the case was that it is
open to everyone to arrange his/her affairs in a legitimate manner so as to reduce the tax burden to a
minimum and does not constitute tax evasion. The court held that tax planning may be legitimate as
long as it is within the framework of the law. However, it also held that the legal effect of a
transaction cannot hide the substance of that transaction, and colourable devices cannot be part of
tax planning. It further observed that every citizen has an obligation to pay taxes without resorting
to subterfuges. In other words, the court accorded a purposive interpretation to the unambiguous
law, which maybe argued to be in contravention of the literal rule principle that when the law is
clear and unambiguous the meaning that is most apparent from its reading is to be given effect even
though it may lead to misfortune and injustice. This conflict was sought to be resolved in the case of
Vodafone International Holdings v. Union of India 2. Although the facts and issues in the case are
completely different from McDowell, the issue that is of concern here is that of interpretation of
taxing statutes. When the argument was raised before the Supreme Court with regard to the reading
of the McDowell decision in the case of Union of India v. Azadi Bachao Andolan3 the court
observed that it cannot be read as leading to a conclusion that all tax planning is illegal, illegitimate
or impermissible and there is no conflict between the Supreme Courts decisions in the McDowell
and the Azadi Bachao Andolan case. The substance over form test should be applied only once it
1 AIR 1986 SC 649.

2 (2012) 6 SCC 613.

3 (2004) 10 SCC 1.
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has been established through the facts that the impugned transaction is a sham and a front for the
illegal purpose of tax evasion. Every strategic foreign investment coming into India should be
looked at in a holistic manner. Merely because at the time of exit, capital gains tax becomes not
payable would not make the entire share sale (investment) a sham or a tax avoidant.
The decision in Azadi Bachao case was incongruent with both McDowell and Vodafone in as much
as it categorically restored the right of the tax-payer to mitigate taxes by all legitimate means. But
this matter was absolutely settled in Vodafone Holdings that Azadi Bachao is not in conflict with
McDowell. In delivering the judgment, the Supreme Court after reviewing various judgments of the
House of Lords in England, has reiterated that the Westminster principle (will also be discussed in
the final draft of the project) is the cornerstone of law and every tax-payer is entitled to arrange his
affairs so as to reduce the tax liability. The fact that the motive for a transaction is to avoid taxes
does not invalidate it unless a particular enactment so provides. In all the above cases the Court was
referring to the appropriate line of analysis to be adopted while determining the legality of a
transaction. This project aims at analyzing the same and ascertaining whether there exists scope for
further debate.
TAX PLANNING AND EVASION
The word tax planning connotes the exercise carried out by the taxpayer to meet his tax
obligations in a proper, systematic and orderly manner, availing all permissible exemptions,
deductions and reliefs available under the statute as may be applicable to his/her case. Planning
does not necessarily mean reduction in tax liability but is also aimed at avoiding controversies and
consequential litigations. Every taxpayer is expected to voluntarily make disclosures of his incomes
and tax liabilities through legal compliance. When a tax payer deliberately or consciously does not
furnish material particulars or furnishes inaccurate or false information to defraud the State, it
violates legal provisions and is termed as tax evasion. In other words, tax evasion means illegally
hiding income or concealing the particulars of income or concealing the particular source or sources
of income or in manipulating the accounts so as to inflate the expenditure and other outgoings with
a view to illegally reduce the burden of taxation. It is not only illegal, but also unethical and
immoral.
[1.1] Tax avoidance by large corporations
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In the case of McDowell Co. Ltd. v. CTO4 the Supreme Court observed
Tax Planning may be legitimate provided it is within the framework of law. Colourable devises
cannot be part of tax planning and it is wrong to encourage or entertain the belief that it is
honorable to avoid the payment of tax by resorting to dubious methods. It is the obligation of every
citizen to pay the taxes honestly without resorting to subterfuges.
It is a well established principle that if a person sought to be taxed comes within the letter of the
law, he must be taxed, however great the hardship may appear to the judicial mind to be. In a taxing
statute, there is no place for intention, presumption or equity, and there is nothing to be read in
through implication; the words are clear enough. 5 However, a way can be found around any law
with diligence, given the time. Corporations and enterprises exploit the loop holes in taxation
statutes to legally evade tax and such actions cannot be termed to be violative of the law prima
facie since it does not expressly identify it as such. Literality, here, becomes the bane for
enforcement authorities since such exigency was not foreseen. Legitimate tax avoidance has been
accepted by the Supreme Court such that taxpayers have a right to arrange their affairs in such a
manner so as to pay the least tax possible. However, tax authorities internationally consider
aggressive tax planning schemes by taxpayers to erode the tax base unnaturally, particularly when
effective rates of tax diminish significantly. The most common method of tax evasion is changing
the jurisdiction. Business clusters develop in those countries where the tax regime is liberal, which
serves a two-fold purpose one, they save huge amounts on tax and two, business clusters can
usually provide the necessary expertise required to operate.6 For instance, Switzerland is the centre
of the world coffee trading business due to the fact that it charges a lowly rate of 12% on trading
profits. It therefore comes as no surprise that Starbucks sources its UK coffee from its wholesale
trading subsidiary in Switzerland. What makes matters even more difficult to resolve is the
competition among such tax jurisdictions to attract multinationals the lower and more liberal the
4 AIR 1986 SC 649.

5 G P Singh, Principles of Statutory Interpretation (10th edn, Wadhwa and Company 2006) 745.

6 Laurence Knight, Corporate Tax Avoidance: How do companies do it? BBC News (4 December 2012)
<http://www.bbc.com/news/business-20580545> accessed 23 September 2015.
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tax regulations, the larger the number of large corporations who flock there. An Indian Company,
with the idea of tax evasion can also incorporate a company off-shore, say in a Tax Haven, and then
create a WOS in Mauritius and after obtaining a TRC may invest in India. Large amounts, therefore,
can be routed back to India using TRC as a defence, but once it is established that such an
investment is black money or capital that is hidden, it is nothing but circular movement of capital
known as Round Tripping; then TRC can be ignored, since the transaction is fraudulent and against
national interest.
Another issue with regard to tax evasion is overpricing through transfer pricing to shift larger share
of profits to low tax jurisdictions, thereby circumventing the place of establishment rule 7. There
have been allegations against Google, Apple, Amazon, Vodafone Holdings etc, recently, of
indulging in blatant tax evasion. While determining whether a particular transaction constitutes as
tax management, tax avoidance or tax evasion, interpretation of the statutes by way of case laws is
of considerable importance.
[1.2] Rules for interpretation of taxing statutes: When tax avoidance becomes evasion
It is well established that penal and taxing statutes are not to be extended by analogy to cover acts
and situations not within the words of the statute or any doctrine of substance of the matter. But this
principle has no application where what is done is actually the thing prohibited, under the cloak or
colour of a different transaction not prohibited by the statute. 8 Grove J. in A. G. v. Noyes9 and Lord
Hobhouse in Simms v. Registrar of Probates10 evasion has been considered to hold two meanings
one, which suggests an under-hand dealing to avoid that to which the Act applies and two, a mere
intentional avoidance of something to which the Act does not apply. A transaction which by the acts
done is of the nature of a trading transaction and is genuine and not sham, does not cease in the
7 Income Tax Act 1961, s 6(3).

8 G P Singh, Principles of Statutory Interpretation (10th edn, Wadhwa and Company 2006) 775.

9 (1881) 8 QBD 125.

10 (1900) AC 323.
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absence of a statutory provision providing otherwise to be an adventure or concern in the nature of


trade, merely because those taking part in it have their eyes fixed on the fiscal advantage of
avoiding income tax.11 But a wholly artificial scheme remote from the trade planned with the
purpose of tax avoidance, even if real and not a sham cannot be regarded as a concern in the nature
of trade.12 The principle laid down in the case of IRC v. Duke of Westminster13 that one has to see
only the legal nature of the transaction and not the substance of the matter, will be inapplicable in
case of a series of transactions or a composite transaction completed for the purpose of tax
avoidance. The new approach laid down in W. T. Ramsay Ltd v. IRC14 has been adopted by the
Indian jurisdiction through the case of McDowell & Co. Ltd v. CTO15 where it was observed that
We must recognize that there is behind taxation laws as much moral sanction as behind any other
welfare legislation and it is a pretence to say that avoidance of taxation is not unethical and that it
stands on no less moral plane than honest payment of taxation. In our view, the proper way to
construe a taxing statute, while considering a device to avoid tax, is not to ask whether the
provisions should be construed literally or liberally, nor whether the transaction is not unreal and
not prohibited by law, but whether the transaction is a device to avoid tax.
The conditions for application of this new approach were laid down in Furniss v. Dawson16. These
are
1. There must be a preordained series of transactions or a composite transaction
11 Griffiths v J P Harrisan Ltd (1962) 1 All ER 909 (HL).

12 Bishop v Finsbury Securities Ltd (1966) 3 All ER 105 (HL).

13 (1936) AC 1 (HL).

14 (1981) 1 All ER 865 (HL).

15 (1985) 3 SCC 230.

16 (1984) 1 All ER 530.


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2. There must be steps inserted which have no commercial purpose except for
avoidance/deferment of tax liability.
Though the Westminster principle is not dead and can still be applied, it is rendered inapplicable in
cases where the Ramsay principle or the new approach has application. The conditions laid down in
Furniss v. Dawson17 were further explicitly delineated in Craven v. White18 1. The pre-ordained series of transactions must have been done so when the tax saving
transaction was entered into.
2. The transaction should have had no other purpose except tax avoidance.
3. The tax saving transaction had no independent life since there was no likelihood of the
series of transactions not taking place as planned.
4. The preordained transactions took place.
In other words, first, the relevant enactment must be construed to ascertain its meaning; then the
series of transactions in question should be analysed, regarded as a whole to ascertain its true legal
effect; and finally the enactment as construed must be applied to the true legal effect of such
transactions, to determine whether the enactment will cover the said transaction or not. Considering
the entire series of transactions as a whole is the most important part of the process since the true
effect of the transaction can be gleaned from this.

MCDOWELL V. COMM TAX OFFICER: CASE ANALYSIS

[2.1] Brief facts and judgment of the case

17 ibid.

18 (1988) 3 All ER 495 (HL).


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Purchasers of Indian liquors for obtaining distillery passes paid excise duty under Excise Rules.
Under the governing law it was includible in the turnover of the manufacturer of liquor. Excise duty
though paid by the purchaser to meet the liability of the manufacturer, is a part of the consideration
for the sale and is includible in the turnover of the manufacturer. The purchaser has paid the tax on
behalf of the manufacturer. In terms of the law the manufacturer was liable to pay excise duty on
the manufacture of liquor. The excise duty paid on his behalf was integral to the consideration for
the sale of liquor. The strategy was the conjoint product of two facts: (i) under an agreed strategy
the purchasers had to discharge the manufactures liability; and (ii) under this system the
transactions of such payments were not made to figure in the assessees books of accounts; it was
stage-managed not to be part of the assessees trade. The assessee continued to sell liquor in this
manner and paid sales tax under the A.P. Sales Tax Act on the turnover returned by him which did
not, as mentioned, include the amount of the excise duty. The assessee devised a way not to pay tax
on turnover inclusive of duty paid by the liquor purchasers. However, the Assessing Authority took
the view and held that the assessee had failed to include in its turnover, the amount of excise duty
paid by its buyers to the Excise Department. The assessee challenged that view but the High Court
agreed with the Assessing Authority. The assessee appealed to the Supreme Court. A Division
Bench of the Supreme Court examined the excise laws as well as the sales tax laws.
Held: The fact that excise duty does not go into the common till of the manufacturer (assessee) to
become a part of the circulating capital, is not the decisive test for determining whether such duty
constitutes the sellers turnover. Tax planning may be legitimate provided it is within the framework
of law. Colourable devices cannot be part of tax planning and it is wrong to encourage or entertain
the belief that it is honourable to avoid the payment of tax by resorting to dubious methods. It is the
obligation of every citizen to pay the taxes honestly without resorting to subterfuges.
The Supreme Court, while making a distinction between tax avoidance and tax planning in this
case, famously observed
Tax Planning may be legitimate provided it is within the framework of law. Colorable devises
cannot be part of tax planning and it is wrong to encourage or entertain the belief that it is
honorable to avoid the payment of tax by resorting to dubious methods. It is the obligation of every
citizen to pay the taxes honestly without resorting to subterfuges.
[2.2] Decision in Azadi Bachao Andolan case and the conflict
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In the McDowell19 case, the Supreme Court held that colourable devices and subterfuges do not
constitute legitimate tax planning. In the Azadi Bachao Andolan20 case, the Indian Supreme Court
held that treaty shopping is a legitimate exercise of tax planning and AIML cannot be denied
benefits of the Mauritius Treaty in the absence of express treaty provisions limiting such benefits.
Considering that the shares were held by AIML for a considerable period of time and are proposed
to be sold at fair market value, the AAR did not view the arrangement as a tax avoidance scheme.
Therefore, the benefits of the Treaty for residents of Mauritius subject to there being a valid tax
residency certificate issue by the Mauritian Government were validated. What differentiates Azadi
Bachao from McDowell is the perception of the ambit and reach of judicial role. The court in
McDowell21 nowhere said that every action or inaction on the part of the taxpayer which results in
reduction of the tax liability to which he may be subjected in future, is to be viewed with suspicion
and be treated as a device for avoidance of tax irrespective of legitimacy or genuineness of the act.
The principle enunciated in the above case has not affected the freedom of the citizen to the act in a
manner according to his requirements, his wishes in the manner to do any trade, activity or planning
his affairs with circumspection, within the framework of law, unless the same falls in the category
of colourable device. But the interpretation of McDowell22 in Azadi Bacaho23 tends towards the
extreme, where it supposes all transactions to be scrutinized under the substance over form test,
which is clearly not the intention of the judges in the former. Such misinterpretation led to the
decision in the latter case that the tax payer has an overriding right to mitigate tax payable, by
legitimate means and should not be scrutinized. 24 Although Chinnappa Reddy, J. makes a number of
observations regarding the need to depart from the Westminster principle and tax avoidance, these
are clearly only in the context of artificial and colourable devices. Reading McDowell, in the
19 AIR 1986 SC 649.

20 (1968) 67 ITR 11 (SC).

21 ibid.

22 ibid.

23 (1968) 67 ITR 11 (SC).


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manner indicated hereinabove, in cases of treaty shopping and/or tax avoidance, there is no conflict
between McDowell and Azadi Bachao.25
VODAFONE INTERNATIONAL HOLDINGS V. UOI: CASE ANALYSIS
The Vodafone tax case throws an interesting question on the taxability of a non resident company
acquiring shares of a resident company through an indirect route. This is a landmark case, as it is
for the first time that the tax departments have sought to tax a company through a mechanism of
tracing the source of acquisition. While we have heard about lifting the corporate veil, this
instance has set a rare example wherein the Indian tax authorities have gone to length to interpret
the existing tax laws, to bring a global company like Vodafone to its tax ambit.
[3.1] Brief facts and judgment of the case
Vodafone International Holdings BV (VIH), a company resident for tax purposes in the
Netherlands, acquired the entire share capital of CGP Investments Holdings Ltd (CGP), a company
resident for tax purposes in the Cayman Islands, which held 52% shares in Hindustan Essar Ltd
(HEL) as well as options to acquire a further 15% shareholding interest in HEL, subject to
relaxation of FDI Norms. The alleged purpose of this transaction was to acquire 67% controlling
interest in HEL. Another issue in question in this case was the validity of Azadi Bachao case when
contrasting it with McDowell case which explains as to how in certain circumstances tax avoidance
should be brought within the tax net.
Held: The Supreme Court delivered a judgment in favour of Vodafone, stating inter alia that no
Indian tax was required to be withheld on a transfer of offshore assets between two non-residents. A
tax free corporate reorganization should not per se constitute a colourable device.
The Finance Act, 2012 introduced Explanation 5 to Section 9 (1) (i) of the Income-tax Act, 1961
clarifying that an offshore capital asset would be considered to have a situs in India if it
24 Ashish Sodhani and Shreya Rao, Landmark International Tax Cases decided by Indian Judiciary Summary (Nishith Desai, 6 July 2013) <http://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research
%20Articles/Landmark%20International%20Tax.pdf> accessed 25 September 2015.

25 Vodafone International Holdings v UOI (2012) 6 SCC 613.


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substantially derived its value directly or indirectly from assets situated in India. The
amendment is currently retroactively applicable from 1961. It was argued by the revenue authorities
that if transfer of a capital asset situate in India happens in consequence of something which has
taken place overseas (including transfer of a capital asset), then all income derived even indirectly
from such transfer, even though abroad, becomes taxable in India. However, this argument was
rejected by the court as an incorrect reading of S. 9 of the Income Tax Act, 1961. The income dealt
with in each of the sub-clauses are to be read separate from each other and the satisfaction of
requirements of others cannot be sought with respect to one. The income in question in this case is
transfer of a capital asset situate in India for which the elements of transfer, existence of a capital
asset, and situation of such asset in India must be satisfied to be taxable. 26 Thus, income accruing or
arising to a non-resident outside India on transfer of a capital asset situate in India is fictionally
deemed to accrue or arise in India, which income is made liable to be taxed by reason of Section
5(2)(b) of the Act. This is the main purpose behind enactment of Section 9(1)(i) of the Act.
However, a legal fiction has limited scope and cannot be expanded by giving purposive
interpretation particularly if the result of such interpretation is to transform the concept of
chargeability which is also there in Section 9(1) (i), particularly when one reads Section 9(1)(i) with
Section 5(2) (b) of the Act. Therefore, indirect transfers cannot be covered under this provision.
[3.2] Detailed analysis of tax evasion with respect to income tax provisions
It is a well-settled principle that all corporate entities have separate existence irrespective of them
being the parent or the holding company and shall be taxed as per their respective places of
residence, notwithstanding the location of the parent company. However, in certain cases where the
executive decision-making of the subsidiary company has become fully subordinate to the parent
company, so much so that, the executive board of the subsidiary has become a mere puppet in the
hands of the parent company, a visible change occurs in the rule of residence stated above. In the
instant case, Vodafone argued that the entire transaction had taken place overseas and India had no
jurisdiction to tax the same. Whether a transaction is used principally as a colourable device for the
distribution of earnings, profits and gains is determined by a review of all the facts and
circumstances surrounding the transaction. It is in the above cases that the principle of lifting the
corporate veil or the doctrine of substance over form or the concept of beneficial ownership or the
26 Income tax Act 1961, s 9 (1) (i).
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concept of alter ego arises.27 The corporate business purpose of a transaction is evidence of the fact
that the impugned transaction is not undertaken as a colourable or artificial device. The stronger the
evidence of a device, the stronger the corporate business purpose must exist to overcome the
evidence of a device.
[3.3] Extension of McDowells principle of purposive construction
In Vodafone Holdings, the court upheld the validity of the judgment in McDowell and rejected the
misconstrued reading of the same in Azai Bachao. Mishra, J. has observed as follows after
referring to a number of English decisions laying down various principles
Tax planning may be legitimate provided it is within the framework of law. Colourable devices
cannot be part of tax planning and it is wrong to encourage or entertain the belief that is
honourable to avoid the payment of tax by resorting to dubious methods. It is the obligation of
every citizen to pay the taxes honestly without resorting to subterfuges.
Reddy, J. has opined while agreeing with the judgment of Mishra, J. that
The principle of Westminster has been given a decent burial in England, where the term tax
avoidance originated. The judicial attitude towards tax avoidance has changed and the Courts are
now concerning themselves not merely with the genuineness of a transaction, but with the intended
effect of it for fiscal purposes.
In the case of Mathuram Agarwal v. Sate of MP28 a five judge bench of the Supreme Court stated
that the subject is not to be taxed by inference or analogy, but only by the plain words of a statute
applicable to the facts and circumstances of each case, implying that revenue officials cannot tax
without statutory support and every tax payer is entitled to arrange his affairs so that his taxes shall
be as low as possible and that he is not bound to choose that pattern which will replenish the
treasury. Therefore, the argument of the revenue authorities that the ratio of McDowell is contrary to
that of Azadi Bachao Andolan was rejected by the court in the case of Vodafone Holdings Ltd and
27 Vodafone International Holdings v UOI (2012) 6 SCC 613.

28 (1999) 8 SCC 667.


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reopening of the case was rejected. Hence, purposive construction adopted in McDowell still holds
good and has been adopted in the present case as well.
CONCLUSION
The principle of purposive construction adopted in McDowell has been repeatedly upheld in
subsequent cases, despite the confusion that arose from the decision in Azadi Bachao Andolan. The
facts of the two cases were quite different and dealt with different aspects of tax avoidance and tax
evasion due to which such confusion arose. This was dispelled by the judgment in Vodafone. While
the Westminster principle states that Given that a document or transaction is genuine, the court
cannot go behind it to some supposed underlying substance, Ramsay lays down that the principle
of statutory interpretation rather than an over-arching anti-avoidance doctrine imposed upon tax
laws, and therefore is only a reading of the Westminster case in proper context by which device
which was colourable in nature had to be ignored as fiscal nullity. Similarly, it has been observed in
Vodafone that in the application of a judicial anti-avoidance rule, the revenue authorities may
invoke the substance over form principle or piercing the corporate veil test only after it is able to
establish on the basis of the facts and circumstances surrounding the transaction that the impugned
transaction is a sham or tax avoidant. In other words, if the interposition of a holding company has
been proved to have no commercial substance, fiscal nullity can be resorted to the revenue
authorities. However, every transaction cannot be looked at from the purpose of tax
deferment/evasion and must be presumed to be legitimate and holistic unless proved otherwise.
This is the limitation delineated for the application of substance over form principle and the final
holding of this case upheld the form over substance rule.
Though form over substance is the rule where the provision is so clear as to leave no room for
ambiguity, the substance over form rule is being preferred by tax authorities who are adopting an
aggressive approach towards tax avoidance to safeguard tax collection in the face of weakening
world economies and stiff international competition. But this new rule is a fresh approach to
interpret taxation statutes which usually do not admit a priori principles of interpretation will make
it tougher of illegitimate evasions to subsist. The Supreme Court must lay down guidelines for
application of this new approach to prevent arbitrariness from creeping into tax collection
mechanisms and protect legitimate transactions from unwarranted scrutiny, which can adversely
affect the corporate entities.
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