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DTC Bill Tabled: Special Debate

Published on Tue, Sep 07,2010 | 10:58, Updated at Tue, Sep 14 at 17:39Source : |   Watch Video :

Two years and the much debate later, the headline issues such as MAT on assets, no exemptions, 25% corporate tax and the EET regime are 12 feet under the ground. And for the most part the Direct Tax Code tabled in Parliament this week makes little material difference to the domestic taxability of individuals and companies. Interestingly though, and I guess in keeping with the globalizing nature of Indian industry, there are several international taxation elements in the bill that have raised eyebrows. I am talking about GAAR, CFC, foreign acquisition and other issues. To discuss them and also comment on the broader issue of tax policy and administration I am joined today by Amit Rana, VP-TAX, GE, D Muthukumaran, Head Group Corporate Finance, Aditya Birla Group, Sudhir Kapadia, Partner, E&Y, Mahesh Kumar, Associate, Nishith Desai Associates & Nikhil Mehta, Grayís Inn Tax Chambers

Q: What is your specific issue with GAAR is because we now spend about a year accepting the fact that we are going to be faced with an anti avoidance regime, technical issues or still stuck with the ideological aspect of it?

Muthukumaran: It is largely technical issues such as how it is going to be implemented, what is the discretion that is going to be sort of invoked by the income tax department on this. As far as the ideological issue is concerned nobody can dispute tax laws against anti avoidance. So to that extent I think after covering all the issues that you have on the income tax that we have comprehensively covered in the indirect tax bill, I do not see a need for having a GAAR which can be potentially misused.  

Q: I know we are awaiting this CBDT list of parameters within which they would be invoking GAAR. I do also know that the second draft code so to speak had actually put down a list of safeguards. Are we still in the ideological debate process and how do we move on to the fact that we are faced with this new regime- how do we make it more efficient and not unfair?

Kapadia: Right. I think the fact that GAAR is here to stay is quite evident. There has been no let down on that. Let me give you simple example. Transfer pricing provisions are also some kind of an anti-avoidance rule. When they came in there was a big concern about transfer pricing etc. If you look today what is the concern, the concern is that the amount of litigation we have and the uncertainty and the time and then the amount of tribunal cases negating what the revenue is done that is the concern. So just to add to what Muthu said is how it will be administered. So that is one part, that is the ideological part. This is going to stay. Just letís dwell upon one simple fact that what is the difference between legitimate tax planning versus the impermissible tax avoidance arrangements which GAAR seeks to undo.

Q: That is the content of a whole other show altogether because that is the debate that we have been having for the last year and a half. We need to move forward on this issue!  

Kapadia: That debate will continue. That is guaranteed under these provisions. So I think I would like to put it this way, because this is here to stay, businesses whether domestic or doing cross broader transactions, will have the onus to demonstrate to the revenue that a set of transactions are done primarily with a business motive and not primarily with a view to avoid tax.

Q: That is a difficult thing to prove?

Kapadia: That is subjective. I do not think it is difficult, but that is always subjective.

Q: Do you believe that the GAAR that we are adopting in India is in keeping with international practices or are they wide big areas, gaps which actually separate us from how different countries impose GAAR.

Mehta: The GAAR that is there in the DTC is certainly a strong drafting that one sees in other jurisdictions. So I canít complain about that. The problem is what has already been said really depends on how this is going to be implemented. My big concern is I think it is a great pity that they have not taken the opportunity to introduce an advance clearance procedure. These are important in international context to enable corporates in particular but also not necessary only corporates to get some certainty as to transactions that they implement that they actually served a notice under the new GAAR regime.

Q: So what you are saying is some sort of pre deal consultation with the tax authorities that this deal pass muster or not pass muster?

Mehta: I do not want to call it advance ruling because I am not talking about something formal as being heard by advance ruling authority. What I am actually talking about is a semi-administrative decision that is made by the commissioner to stop issuing a notice in the future.

Q: I think the several of the issues with regards to GAAR have not been articulated at all. I remember when last year when China put out their circular with regards to the foreign transactions that they were hoping to tax, the overseas transactions that they were hoping to tax. Everybody said look at China at least they are making it clear what they are going to tax. If the CBDT does puts out a list that gives you some amount of certainty of the kind of transactions that will come under scrutiny are we then a few steps ahead and a little better off or will this still be a case of sweeping powers given to the department to be able to scrutinize all kinds of transactions with the onus of proving innocence being placed on the transacting companies?

Rana: Absolutely. The point is the law is very expansive the way it is drafted in the Code today. It gives a lot of discretion to the tax office therefore you need certainty which is what I thought the ideological objective of coming into new code all along was. This is undermining that. How do you address that as Nikhil said? You have to have advance clearance. You need to get certainty through example. The last time the Code came out, the government did say that they are keen to actually not make, to create a lot of uncertainty around it. They are happy to come out with these examples where GAAR will not be invoked because they believe there is no anti-abuse. So is the advance clearing, the examples. All of these are aspects where the government can address the uncertainty aspect on GAAR but having said that it is on a whole white canvas out there and there will also be things which will fall out of those aspects. Therefore I come back to the ideological issue Ė Do we need a GAAR or a specific anti-avoidance? Like Kapadia said we have transfer pricing. They have introduced CFC, all these are nothing but anti-abuse. So let the government think of everything that they believe is abusive and come out with specific anti avoidance rules around that. Because our experience as tax payers, with administration today is that when you give discretion to them it leads to a lot of litigation.

Q: And our experience with companies is if you create specific rules they will find loopholes to structure that transactions and make sure that they are able to escape some of those requirements so maybe they do need an umbrella clause that allows them to look at things which are not specified in the legislation?

Rana: If I had to concede that though I do not agree with that because we go and sit with the tax officer, and we know how sometimes they behave in a very abrasive fashion but even if we have to concede that we need a very robust review mechanism and I will give you examples of Canada and Australia, these are two big countries in the world who have very comprehensive GAAR regimes so both countries have this review processes in place and those review processes have to be manned not by people within the revenue in Canada and in Australia, these review panels are actually manned by people who understand business who are actually Ė who can understand commercial transaction who are savvy with how business is evolving. So they are actually participantsÖ

Q:So itís no one-sided revenue officials so to speak

Rana: Right.

Q: And what does the review process do. Does it constantly scrutinize whetherÖ

Rana: Ö..there is an advance ruling process while Nikhil is saying thatís probably not what he wants for India but there is an advance ruling process and review mechanism within the revenue which says that you cannot invoke GAAR until you go through the revenue panelÖ

Q: Ö so these are all safeguards to make sure that certain kinds of transactions that are scrutinised. I think your principal objection was the fact that the rules have been set out by the CBDT which itself is a government entity and therefore the rules are always going to be anti-tax payer?

Kumar: Actually the issue is more of constitutional issue where there is a fundamental principle that you cannot excessively delegate core legislative powers. The power to actually execute to implement GAAR is actually the power to impose tax in situations where tax could not have been imposed where a transaction was done on the basis of the ornery provisions of the law. Now this power when given to the tax department itself is an excessive delegation and something that cannot stand up to the constitutional test.

Doshi: So I have heard constitutional issues, operational issues, ideological issues. I have one question does GAAR or the application of GAAR mean that for all practical purposes the Mauritius route which was a thorn in the side of the tax department is now going to die a slow death because there is going to have enough reason to question every single transaction that is done coming through Mauritius?

Muthukumaran: Potentially itís a vast issue and there are number of angles to that but potentially yes and in any case under the CFC regulations lot of Mauritius companies might have issues so to that extent it will just add to the process and enhanced tax regime.

Doshi: So should we discuss CFC first before we discuss the impact on the Mauritius route. Will that make sense?

Kapadia: I think Mauritius - we need to look at from an inbound perspective separately and an outbound perspective separately. CFC as you know is an outbound issue, so parking that aside for a moment. On the inbound issue of Mauritius, I would say there are two broad categories if not more; one is what I would call FDI investment which primarily comes through what are called special purpose vehicles so if you have a US based multinational investing in India but chooses to route that investment through a special purpose vehicle in Mauritius thatís one fact pattern. But you also have a whole host of funds which make investments into India securities like they do world over. Funds by definition are collective investment vehicles and we have advance rulings in India going back to the early 90s which have clearly said that if you have a collective investment then you have a dominant commercial reason to organise yourself in some country or the other. Am I going to be penalised because I chose MauritiusÖ..

Q: I am asking you that question Ė are you going to be penalised because you are going to choose Mauritius under this GAAR regime?

Kapadia: I do not believe so and the reason is that the tax benefit I would argue is only one-of the benefits which I will look at when I am doing what I am doing, I am selecting a jurisdiction which is appropriate to house my entity. It is a collective vehicle. The FDI argument would be much weaker but when it comes to fund vehicles, I think there are good reasons to use, why Mauritius, it can be anywhere else so long as I am giving bonafide reasons. And another pointó even the Singapore Treaty says, forget the GAAR, the Treaty says that if it is prima facie for tax avoidance, the Treaty may not apply. So the commercial test if you ask me look at Azadi Bachao, look at E*Trade today also it would be a very bold taxpayer who is not looking at commercial substance while arranging his affairs. So I do not think that should change materially but certainly if you are looking at just single SPVs for instance when you are not able to get anyÖ   

Q: If you are looking at those who pick or picking form over substance while they were anyway always in danger because that scrutiny has already started a few years ago.

Kapadia: And that is now strengthening the hands of the tax officer Ė no doubt about it.

Muthukumaran: I want to add that I agree with Sudhir that there are multiple angles to Mauritius companies. CFC as he mentioned is outbound even the inbound is largely going to be taxed under the new regime under the indirect taxation or indirect sales being taxed in India. So I think the issue of Mauritius Company will probably get into multiple angles to be addressed; one is corporate, one is investments, financial services. So there are multiple and then what is genuine and what is form over substance, what is substance over form.

Rana: The point is that all along in 2004 we had decision in case of Azadi Bachao in the Supreme Court which pretty much laid the issue to bed and said yes, a Mauritian investor is given benefit of the Mauritius Treaty Ė you have that and thereafter people basis that law which was the law of the land set up structures to investments. So I would to some extent slightly disagree with Mr. Kapadia where he is saying that FDI generally is SPV and therefore would fall foul of GAAR. I would say itís not, we are not doomed Ė multiple aspects, Mauritius has an offshore regime, itís a Mauritian legal thing where you will set up a company which canít do operations in Mauritius so it has by definition has to be an holding company. So the fact that the law in Mauritius enshrines that and itís an India-Mauritius Treaty. Second, India also recognises in their regulation the concept of holding company so itís not that there is an alien abusive concept per se so this is one aspect that I think because of that and the way investments have evolved over time, people have set up structures in Mauritius, we are not doomed on day one because of GAAR thatís one. Second, we set up or people set up structures in Mauritius using extant law. Today if the government wants to go back and change that law because those structures Ė somebody made an investment assuming that exit which comes maybe ten years down the line will not be taxed in India

Q: So grandfather the existing structure?

Rana: Absolutely.

Q: If you are going to change the law that changes the applicability?

Rana: In the spirit of what you are doing in grandfathering other benefits, grandfather this as well, it was the law of the land; nobody was trying to be cute about it.

Q: Nikhil, do you have a last word on this before I move to the next issue which is CFCs?

Mehta: I agree with most of whatís been said.  I do not think this is the end of Mauritius although I can understand and I think it is at the end of the day boils down to going beyond just GAAR which is now going to come in with just bare minimum requirements expressed under the DTC and to see what other substance there is and whether the substance just for the commerciality of whatís going on and apply both in the FDI context and in other contexts.

Q: Moving to CFC and I think this is part of attempt to tax passive income and you seem to have both an ideological issue as well as some opposition to some of the technicalities of the CFC regime as itís laid out in this regulation. Can I skip the ideological part and say what is he harm to the tax department believes that it has the right to in fact tax income that is actually or does belong to an Indian company but simply hasnít been brought on shop?

Muthukumaran: There is no ideological issue in taxing because if it is an Indian capital many advance countries do have this provision of CFC but the issue I have ideologically is basically around if you are taxing the income then from all time it should be considered Indian income. So the host of regulations with respect to foreign currencies, with respect to FDI, with respect to pricing of transactions between residents and non-residents should also be ideally going away. However we are very far from capital convertibility and this will lead to some kind of a capital convertibility. So my ideological issue is itís probably little ahead of time rather than whether it should or it shouldnít be.

Q: Does anyone on this panel believe that there are technical aspects to the CFC application that is more important than the ideological debate because it seems the inevitable; we are faced with the CFC regime even though it only came into the second draft?

Mehta: Two points first of all there is a fundamental drafting error in the legislation because it defines control with reference to somebody in India owing at least 50% or not less than 50%. That actually means if you own 50% only of a foreign company that is a CFC, thatís not control. I think that need to change that to make it clear to make it about more than 50% and second, very important which affects the number of comments that already been made there is missing, what I call a motive test which means that if you set up your CFC for commercial reasons for e.g. a 50-50 joint venture with a foreign counterparty in a neutral location, the fact of that maybe a holding company earning passive income in the form of dividends or possibly interest doesnít necessarily mean that that should be taxed as a CFC with profits attributed back to India. So the lack of a motive/ commerciality test is actually a significant gap in what they have produced.

Kapadia: Let me add to this. I think from an India INC point of view assuming it is there in the context of GAAR, it is there what I do about it. There are two-three things; one is the most important as far as the design of CFC is concerned you need to provide for matching underlying tax credits. This is the biggest issue today. Simply put, I have a cascading tax if I am an Indian multinational because all the operating companies who operate all over the world pay taxes in all these countries, those do not get uplifted so this is a fundamental design flaw that needs to be corrected so thatís one. The second part as far as planning ahead is concerned like in other legislation, in other countries; there are many savings and many exceptions. You talked about Mauritius in the context of outbound. If itís a listed company and we have many examples in public domain in the last one year, there is an exception provided. CFC does not apply so there is a saving and there is a planning opportunity as well we are not discussing in detail all the planning opportunities here but there are enough ways to ensure that you failed the CFC test as well. So, all is not lost just because you have a CFC regime.

Q:  Spoken like a true tax consultant! I think part of the concern that you were raising as well, that they have in the list of income that they intend to tax they have taken the best of lists worldwide but they havenít put in the parameters that other lists across the world put it?

Rana: I think the basic concept of CFC is to try and tax passive income which people are off-shoring but there are as you said, there are technical issues with the way they have drafted and hopefully this is only work in progress kind of a draft hopefully so fundamentally one thing that I clearly see and this is based on examples in other countries is that the way the law has been drafted if an offshore company is earning financing income and financing income can be earned by banks, by finance companies. I do not think the law makes an exception to carve that out which if you ask any one is a bank engaged in active business, of course it is; it has 5,000 employees, branches everything but that exception is not there because the way they have defined it unless your income from interest is less than 50% you are a CFC.

Q: So if you had sharper definition would that make CFC little more palatable to you?

Rana: AbsolutelyÖ

Q: Then the objection dies out to some extent with the exception of Muthukumaranís ideological objections saying we are going to tax it as Indian income then treated as an Indian income for all other practical purposes as well?

Rana: So one is to try and refine the law because CFC law is very complex. US introduced CFC in 1962. 2010, which is 50 years down the line people are still very unhappy with CFC laws in the US so itís a difficult law to draft implement etc so they have to do a lot of work. Itís not simple to just get to the right law thatís one part and the second is which the point I believe is that Ė is this a right time to implement a CFC in India given the fact that we have bigger fish to fry, given the fact that we have limited capital account convertibility, probably the audience they are trying to address through this law is limited so should administration focus efforts on this limited audience or to try and generally address issues in tax administration which people are facing otherwise? So those are the two broad themes.      

Q: I want to come to the definitional issues that you have raised with regards to the definition of permanent establishment as well as place of residence and I know that several other members of the panel also have issues with place of effective management or POEM as itís called, why donít you run us through what some of your concerns are?

Mehta: Of course it is a big improvement to see the test of corporate residence defined by reference to place of effective management much better than what we had before. It is a little disturbing to see the words ďat anytime in the financial yearĒ still in the definition so it actually means you got to avoid a POEM at anytime in the tax year which again we could do without because that just creates uncertainty. Then in terms of the actual definition of POEM, itís fairly clear that one can identify that if that lies with the board of directors where they meet there is no problem with that, one can identify that easily. But dealing with the decisions of executive directors could be problematic particularly in multinational context and this relevant not just to foreign companies doing business in India but Indian companies with overseas operations because I think that is going to create quite a lot of uncertainty. And the only other point I wanted to mention on residence because I havenít actually seen this debated elsewhere extensively is that we have clarity now on residence for individuals and residence for companies, we still however have a residual definition of residence for ďother personsĒ by reference to management and control ďat any time in India whether wholly or partly.Ē Now if you look at firms, if you look at trusts, if you look at other organizations that might be associations of persons or bodies of individuals, all these issues which we debated earlier with the corporate residence test are going to arise where we have a single individual in India possibly exercising management control on a temporary visit to the country. So that I think does need to be tied up in a way that the corporate residence test was tied up for example and I think it is actually a serious concern but obviously itís not a point thatís been lobbied for by the corporate community.

Kumar: If I could just add to that the issue on POEM, the foreign company as long as it is not wholly controlled or managed from India it does not become an Indian resident. Now here as Nikhil just said the presence of directors and the dynamics of that could create a lot of issues on this.

Q: I remember when the first draft came out, we were talking about the fact that if Pepsi does a board meeting here in India and flies its entire board down here, does that make India a place of effective management and give the tax department rights to tax Pepsi so to speak, its global income?

Kapadia: That was because of the word partially.

Q: Yes that was extreme, that has been pared down now?

Kapadia: My own view is you canít argue against a place of effective management and control kind of definition being brought in. That is there recommended by the OECD. I hear Nikhil and maybe there is some tweaking required especially in the executive directors, like Singapore for instance to my knowledge doesnít go that far. They simply say where the board, see the common law test of place of effective management and control, it is simply put where the head and brain of the company take strategic decisions. If we accept that part of the POEM that should be fine and frankly this ďwhollyĒ was a window of opportunity which was available for 50 years, somebody has just noticed it now.

Q: So you are pretty okay with the way the way definitions pan out right now?

Kapadia: I am saying you canít quarrel against that, I would be okay with all exemptions and no taxes but you canít quarrel against an attempt made by the revenue to bring in a place of effective management kind of definition.

Muthukumaran: I just want to add one point to Nikhilís points, actually in fact Sudhir also touched upon that. The only consolation to Nikhilís point is that the entire charging section talks about proportionate charging which means if you are actually CFC only for part of the year or few days in a yearÖ

Q: Then you can charge proportionatelyÖ

Muthukumaran: Exactly only for those days in numerical terms, so thatís little bit of consolation butÖ

Q: Muthu, you are looking for silver linings, I am surprised.

Rana: At a practical level Indra Nooyi coming in and bringing her board here and doing a board meeting if that really trips that lets quantify itÖ how much income does it earn for Pepsi, itís going to be huge in terms of just the practical challenge!

Doshi: I think that was an extreme sort of example that was laid out in theÖ

Rana: If the way itís been draftedÖ

Kapadia: Not the latest one I donít think this situation will result in any tax or any risk at all.

Rana: But what does any point in time in the year really mean?

Kapadia: Any point in time comes in only in the main definition. Where is the place where the board of directors routinely take strategic decisions? Thatís the first part of the definition.

Kumar: Routine is not a word that is not there in the draft. So these are the defects which can actually...

Doshi: You are saying common sense will prevail even if it doesnít actually show off in the legislation?

Kapadia: In fact in matters like this common sense will prevail, I am not saying it prevails always. 

Doshi: We will defer to his experience with the tax department.

Rana: I am saying that with his experience the optimism is really encouraging.

Q: I have a quick question on permanent establishments. That definition has been widened as well, unfairly so as many people say, you want to come in on that and quickly tell us what the implications of that really are?

Rana: The definition has widened significantly, in terms of they brought in all the positives that create a permanent establishment, they have not kept some of the negatives out, typically which is in OECD and lot of our treaties. So for example, Time magazine sourcing content from India usually is excluded or somebody sourcing goods from India is usually excluded. Some of those exclusions are not being seen in the revised definition. What that does is that they have this concept of Branch Profits Tax, and Branch Profits Tax is triggered if you have a PE. So if you have a PE, I am foreign company I am providing some services in India which comes within the definition of service PE because the PE definition has been widened. I trigger a Branch Profits Tax usually in the treaty I would be out, I would be out because the treaty has more restricted definition but because I am in Branch Profits Tax (which incidentally overwrites treaty thatís one of the laws, one of the provisions), so even though I could be out under the treaty which is what they really wantÖ

Q: You are in under the legislation so to speak.

Rana: Right. Because of Branch Profits Tax, I still end up paying Branch Profits Tax though usually I would be out under the treaty completely.

Q: We need to narrow down some of these issues so that we are very clear is to exactly what constitutes a PE and therefore how you are going to tax it.

Now, a quick question on what we are calling the anti Vodafone clause in this new regulation Ė what do you make of it and its impact so to speak Ė are you happy that the tax department is setting the record straight finally and that they have also provided for a carve out saying that less than 15% of the assets are in India then you donít have to worry about us chasing you or do you believe that is just an attempt to bring Vodafone into the net?    

Mehta: It is an attempt to bring Vodafone into the net. The other main problem that I have over this is that again like the CFC threshold it applies to somebody who has assets of at least 50% in India.  So it is not just attacking just controlling interest in an Indian company. We need to see what Vodafone actually comes out as saying, as to whether because the way the section is now worded it is assumed that this indirect extension of the tax already exists in the statute book. The reason that I am saying that they would move the reference to indirect transfer but they seem to be on the fact that if you have an indirect connection and that can give the tax auditor a chance to attack the disposal of shares in foreign company.

So I do think it is Vodafone. I do think they need to correct the threshold and it would be interesting to see how this ties in with Vodafone eventually tells us.

Q: What do you make of the impact of the anti-Vodafone clause Ė do you believe that in a sense this fairly captures the attempt to do offshore transactions and escape the Indian tax authorities even though a bulk of the Indian assets in transactions of these natures were actually located in India?

Muthukumaran: I think it does. It does fairly try to capture the word because the fundamental driving factor of taxation is that if the asset is in India, if you have earned profit out of it you got to pay tax in India.

Q: So it is fair?

Muthukumaran: It is fair but to be honest I am not an expert in the international taxation field so I do defer to experts on the inter-play between two national constitutionals and what role does it play.

Q: So you are actually shifting the onus of the answer to the gentleman in the blue jacket.

Kapadia: In think there are 2-3 things here. The first is what international companies were looking for is certainty. The way the law of the land always stood, it did not support, at least in the view of the international companies, the kind of tax treatment sought to be undertaken by the tax department. I think the point which Nikhil made I personally feel that should not impact any of the past cases, the language which has now come in.

Q: Technically because this is prospective.

Kapadia: 100%.

Q: I think several people are also telling me along with Nikhil pointed out is the way they worded it almost makes it sound like we had Ö..

Kapadia: That is their wish list. That is the wish list of the draftsman. My personal view is that no court of law will rely on this. In fact I think there is a difference in the language that has now come in because of the view that was expressed. In fact when you are trying to capture such transactions prospectively it means there were not taxable in the earlier law. So they have tried to improve that language to give an impression that this was always taxable and now they are giving a relief in terms of 50% test. I think that is a wish list of the draftsman. I do not think that should turn either way as far as the merits of any similar transactions are concerned.

Q: So if you were to make the case that this does not apply to Vodafone and a bulk of other transactions that have been under scrutinize till now here onwards will it provide certainty  - is it fair?

Kapadia: As far as providing certainty is concerned at least I as a tax payer know what are the conditions under which the Indian tax authorityÖ as you mentioned the Chinese government did that with their circular, we are doing it through a particular provision in the law. Whether you agree with it or, whether you feel it is fair or not at least you know what you are getting in for. So I do not think we can quarrel against that.

Q: I want to bring in one aspect in M&A here and that is that foreign amalgamations are in that sense not taxable. Foreign amalgamations if not done under the auspices of the Indian Companies Act will now be taxable which I think you brought up Mahesh, you seem to believe that this is a drafting error and not really an intent to actually tax foreign amalgamations.

Kumar: If it is a drafting error something which was there in the first draft then definitely the government, it's ridiculous because you just cannot have a domesticÖ

Q: So it's persisted between both drafts?

Kumar: Yes that itself is a problem, that they have allowed a drafting error to creep in into the final bill that is read before parliament but if it was not a drafting error, if the government has consciously made a choice here then that is something that is extremely regressive because it in fact breaches our non-discriminating obligations under our tax treaties. Under our tax treaties we have an obligation not to discriminate between a foreign entity though there are technicalities to this but it is just regressive.

Q: Is it regressive Amit? Do you agree with that or are you still looking at it as a drafting issue?

Rana: I think it's a drafting issue. Clearly they have put the provision in there. If they don't bring in this clarification to say that it doesn't need to be under the auspices of the Indian Companies Act then that provision is ineffective, what is the idea of that?

Kapadia: I also think it's a drafting oversight which should get corrected because otherwise the exemption would not have been written in as Manish also pointed out, the exemption is there. I think it's the definition which the clarification has to come in.

Q: So it it's just a drafting issue and this brings me to my final comment, we have been through this debate for the last two years and if it is a drafting issue that has crept in from the first regulation that we saw last year all the way to the bill that's been represented in parliament, what does it say of this law? What does it say of the quality of the writing of this bill? What does it say of the process with which this bill has been put together? Are we faced with something that will survive the next 20-30-40 years? Is this the new law we were looking for?

Muthukumaran: I think so, as far as the drafting errors are concerned as I said I am sure it will be fixed, some of them will be fixed before it becomes law and when you do such a voluminous work I do expect some errors to creep in. As far as the concept is concerned I don't think we are going to do away with amendments, this is not going to be taking away amendment for the next 20-30 years. We have seen it in any number of acts we have or statutes that we have in the country. Fundamentally the objective of this exercise was to simplify, which actually has been achieved. As far as concepts are concerned some new concepts have been brought in, whether it is CFC, whether it is indirect tax, whether it is GAAR, all these things and even on the corporate exemption front. So lot of these have been achieved. So conceptually there was never an error they were trying to fix and every decade we had new issues and as Sudhir pointed in the beginning we had transfer pricing issues dominating almost the last decade. So we will have some of these dominating in the next decade.

Q: So this is going to be the GAAR decade, is it?

Muthukumaran: It is going to be GAAR decade.

Rana: It will be the next three decades of GAR. 

Q: Mr Kapadia, I want you also to revaluate this law or this potential law on the basis of equity and of bringing more people into the tax rate if at all that was one of the goals that the new bill had to do, sort of fulfillÖ

Kapadia: It attempts to bring more revenue from the same set of tax payers unfortunately. 

Q: Or widen the tax base.

Kapadia: But there are two interesting aspects, one is what I like about the direct tax bill is the fact that it has attempted to use formulae rather than a whole host of narrative definitions which is found in the existing law today. So their view is actually A-B-C-D, what A stands for, what B stands for, what c stands for, I think that's a welcome change. It's a very dramatic one, in India laws are always made in narrative form. You never tinker around with alphabets and numbers, that's the good part. I think the second part which I would like to make is that the fact is that businesses are becoming more and more complex, the fact is that we are living in a more and more globalized world. We got to realize that when you set to draft yourself, something which you hope is very clear, very certain and will have no litigation, I don't think any of the democracy there is possible. You will always have fertile imagination and fertile minds at work. I think what we have to see is that given the complexity of the issues, given the complexity of businesses, has an honest attempt been made to try and give out the intent of the government. You may agree with it, you may disagree with it. I have severe disagreement with a lot of the issues here. But given the intent has this been reflected? I think that's a good job done at the end of the day.

Kumar: I am not optimistic as everyone is over here but this is a code without any direction. Itís interesting you mentioned goals. Because they started out by saying equity, stability, remove distortions, expand the tax base and if you look at this bill I donít know if anyone has looked at the statement of objects and reasons, it comes at the end of the 400 pages.

Q: And you are the only one who got there right because the rest of us went to sleep at some point!

Kumar: No I actually jumped to that first! So this statement, what does it say? No talk of equity, stability or anything, all it says that this is an attempt to simplify the existing tax law.

Q: But thatís not a bad goal to have, right? The point is this, if the attempt was to simplify then we went through a pointless two year exercise of bringing in lots of new different things, MAT on assets etc. and we can write off those two years and this meets the simplification requirement so to speak. I am saying should we had loftier goals, does this meet those loftier goals, if this is going to be the next law for the next 60 years, does it meet the needs of the next 60 years?

Kumar: If this has to be a law which would meet the needs of next 60 years the government should have done its homework. The government absolutely has not done any homework on this. Look at any other provision, look at CFC, look at GAAR there is no theoretical backing, there is no estimates, they have not come with any projected estimates, revenue estimates of what exactly is going to be the revenue impact of this proposal as they do in the US. In the US, every proposal is thoroughly analyzed. They look at economic theories, they look at the pros and cons, they do a very thorough cost-benefit analysis of each proposal there is a law saying that the government has to do a 10 year revenue estimation of each proposal and thatís how parliament decides it. Now here we have a code which has a bunch of new proposals they really donít know what itís trying to achieve.

Q: That is scathing criticism from a 25 year old for the tax department. So I hope they are listening very closely. Last word to you Amit.

Rana: If you really look at the process as it started, and the way its evolved, they came out with the first draft, they were very amenable to public debate and hearing people so much so that they actually came out with that white paper or before that they came out with a list of 10 things they addressed that in the white paper they have come out with this draft. So if I have look at the process its heartening. So I think if this is really the policy as Sudhir said, if this was the policy and intent of the government is, we need to chisel it.

Q: Sharpen it.
Rana: Sharpen it, the parliamentary standing committee review process should do that, they should take on both the representations that have been experienced so far and then finally what comes out is at least a tight law and at least I have hopes and I am optimistic about it.

Q:  Nikhil, I have 20 seconds with you on our London line so I am going to ask you for a quick closing comment on whether you think this legislation is in fact the legislation that India needed in terms of a new direct tax bill or whether this is just old wine in a new bottle so to speak with lots of very unpleasant clauses as seems to be the case.

Mehta: It's old something in a new bottle. I don't know whether we have gone the full circle because we started off with simplification. We have a much shorter tax code but given where we have ended up with I am not actually sure that where, what the direct tax code is going to do to improve the position from it were earlier and there is a lot more clarity required. The problem of simplification using fewer words is that you need more words to explain yourself and that's what the DTC is today. Although undoubtedly there have been some improvement.


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