Authority for Advance Rulings - The Chamber of Tax Consultants
Transcription
Authority for Advance Rulings - The Chamber of Tax Consultants
_Authority for Advance Rulings – Concept & Scope of Advance Rulings under Direct Taxes _ Paras S. Savla, Advocate and CA. Dharan V. Gandhi Authority for Advance Rulings – Concept & Scope of Advance Rulings under Direct Taxes Disputes between the Income-tax Department and the taxpayers is a never ending phenomenon. Three ways could be perceived to resolve such disputes. Firstly, there could be a consensus between the parties; secondly, there could be an adjudication, which is presently the recognised process. Thirdly, there could be an advance ruling on the question involving substantive issues. Advance Rulings so that they are not saddled with problems of uncertainty with regard to the taxability of income arising out of the activities or transactions undertaken or proposed to be undertaken in India. This scheme sought to expedite the resolution of disputes between the Incomes-tax authorities and the taxpayers to CEJKGXGſPCNKV[5QOGQHVJGQDLGEVUQHVJGUCKF scheme are: The first one namely, consensus, is the most unlikely solution because the tax department and the taxpayers are not likely to have consensus in most cases. Though, lately, some steps are being taken by the Government to bring about consensus between the two parties by way of Advance Pricing Agreement. Second solution viz., adjudication is a long drawn process until certainty is achieved. In 1991, when the doors of Indian economy were opened by the then Finance Minister to take India out of the economic turbulence and when the investors abroad were welcomed with red carpets, investors were wary about the uncertain tax atmosphere, including the time consuming litigation process, subsisting in India. a. The non-resident investor can be sure of its liability towards income-tax even before the start of investment in India. Hence, it can plan its investment accordingly and it would be able to avoid long-drawn litigation. b. The AAR is best suited to sort out complex issues of taxation including those concerning interpretation of Double Taxation Avoidance Agreements (DTAA) which arise consequent to difference of opinion between the tax collectors and the taxpayers. c. The rulings of the AAR are binding on the applicant as well as the Commissioner of Income-tax and authorities below him, not only for one year but for all the years unless the facts or the law change; therefore, having obtained the ruling on a given set of facts the taxpayer may be sure about his tax liability in future. The scheme of advance rulings (Chapter XIX-B) was, introduced from 1st June, 1993 in the Income-tax Act, 1961 (‘Act’) for the benefit of non-residents so as to enable them to obtain a ruling in advance from the Authority for ¯16 | The Chamber's Journal | $SULO | 669,, | SPECIAL STORY | Advance Rulings & Settlement Commission| d. The AAR is to pronounce its ruling within six months of the receipt of the application. This enables the investor to obtain the ruling without undue delay and with certainty regarding its tax implications. e. The statute does not preclude the AAR, if the circumstances so warrant, from allowing the applicant to modify or reframe the questions, agreements or projects till the time of hearing. Such a facility is generally not available before other courts or tribunals. f. Under the rules, the proceedings before the AAR are not open to the general RWDNKE%QPſFGPVKCNKV[QHVJGRTQEGGFKPIU is maintained by the AAR as contents of the application are not revealed to any unauthorised person. Thus, there is no danger of the business secrets of the applicant being leaked out to its rivals or others. g. Protracted hearing of the application is avoided. If a complicated issue of law or fact is not involved and the point of view put forward by the applicant is acceptable, a ruling will be pronounced by the AAR without personal hearing. In other cases, the applicant, if he so desires and, if considered necessary, a representative of the Department will be heard and a reasoned ruling will be given by the AAR in writing. With the above background, let us have a look at the framework of Authority for Advance Rulings [AAR] – Section 245-O The AAR is located at New Delhi. Recently, vide Finance Act (No. 2) of 2014, the Central Government also enacted provision for having more than one bench of AAR at such places as the Central Government may by notification specify. SS-VII-9 The AAR consist of (a) one Chairman, who is a retired judge of the Supreme Court; (b) such number of vice-chairmen, who are retired judges of the High Court; (c) Revenue members from Indian Revenue Service who are either a Principal Chief Commissioner or Principal Director General or Chief Commissioner or Director General and (d) Law Members from Indian Legal Service, who are Additional Secretary to the Government of India. The Benches of AAR shall be presided over by either the Chairman or the Vice Chairman and shall consist of one Revenue Member and one Law Member. By virtue of the provisions of section 24SU(1), the Authority has been provided with all the powers of a Civil Court under the Code of Civil Procedure, 1908 as are referred to in section 131 of the Income-tax Act when trying a suit. Further, under section 245U(2), the Authority is deemed to be a Civil Court for the purposes of section 195 of the Code of Criminal Procedure and every proceeding before the Authority is deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purpose of section 196 of the Indian Penal Code. One of the objectives of the AAR scheme was to bring a certainty about the tax implications of the transactions undertaken or proposed to be undertaken by a non-resident investor. To achieve the same, section 245S provides for the binding force of the ruling. Section 245S (1) specifies that the ruling would be binding on the applicant who had sought it. Further, the Ruling would be binding only in respect of the transaction in relation to which the ruling had been sought. The ruling would also be binding on the Commissioner and the Incometax authorities subordinate to them, in respect of the applicant and the said transaction. Therefore, Rulings pronounced by the Authority would not be binding in case of any other assessee or the departmental authorities. However, such rulings would have persuasive value and may be relied upon by the AAR itself or by | The Chamber's Journal | $SULO| 17 ¯ _Authority for Advance Rulings – Concept & Scope of Advance Rulings under Direct Taxes _ the Applicant/department in their cases. Subsection (2) of section 245S provides that the ruling shall be binding unless there is a change of law or facts on the basis of which the ruling was pronounced. Accordingly, if there was an amendment to the law, the ruling would not be binding. Similarly, if there is a change in facts – UC[CPCITGGOGPVKUOQFKſGFVJGTWNKPIOC[PQV be applicable. Section 245T enables the authority to declare a ruling pronounced by it as void ab initio if such ruling is obtained by the Applicant by fraud or misrepresentation of facts. As a consequence, all the provisions of the Income-tax Act shall apply to the applicant as if such ruling had never been made Advance Rulings system in other countries The Advance Rulings system is in vogue in many countries, albeit with substantial variations. Advance Rulings is internationally recognised as "A more or less binding statement from the revenue authorities upon the voluntary request of a private person, concerning the treatment and consequences of one or a series of contemplated future actions or transactions”. Despite the fact that Advance Rulings facility serves similar purposes in all countries, there are UKIPKſECPVFKHHGTGPEGUKPVJGRTQEGFWTGCFQRVGF in the various countries. In most countries, tax authorities are generally willing to answer inquiries made by taxpayers even without a formalised ruling procedure whereas in some countries there is a statutory back up procedure for pronouncing such rulings on questions of fact or law emanating from the queries of the taxpayers. Rulings in certain countries like USA, Sweden can be obtained only if the question is a question of law, whereas in countries like Germany and India, advance rulings can be obtained on factual as well as legal questions. In most countries, taxpayer or the representative of the taxpayer are entitled to apply for a ruling. Some countries allow only the residents to apply for advance rulings. India, by contrast, has formal ruling procedure applying specifically to non-residents. In Sweden, the tax authorities may also apply for an advance ruling. In many countries, the advance rulings are issued by the Revenue Department as an administrative measure; the three exceptions are Sweden, Denmark and India. In India, unlike most other countries, advance rulings are given as a quasi-judicial pronouncement by a high level statutory and independent authority. In so far as the binding effect of the rulings are concerned, in some countries the ruling does not have a binding effect like in Austria and Canada. Further, the countries like USA, France, Netherlands, Germany, Sweden, the taxpayer has the right to renounce the ruling as against India where the ruling is binding both on the taxpayer and the department. Certainly, the concept of AAR is a win– win situation for the taxpayer as well as the department, and consequently to the economy as a whole. AAR has been able to achieve most of its objectives. However, one believes that there are many areas for improvement. The major area of concern is the increasing pendency of applications before the AAR and as a result of which, time limit for disposal of matters provided in the statute is not adhered to. Unless this is assured, the entire intention of the framework of the AAR fails. The recent vacancy in the appointment of chairman of the AAR has led to delays in the disposal of the applications. Further, it was only vide Finance Act (No. 2) of 2014 that provision for increasing the number of benches have been inserted in the statute book. However, no such benches have been notified yet. Government should immediately act upon this and in order to make the AAR function to KVUHWNNRQVGPVKCNſNNKPVJGXCECPEKGUQHOGODGTU and constitute more benches. ¯18 | The Chamber's Journal | $SULO | 669,,