2002 (5) TMI 44 - HC - Income Tax

Summary

Issues Involved:
1. Validity of Circular No. 789 issued by the Central Board of Direct Taxes (CBDT).
2. Interpretation of the Indo-Mauritius Double Taxation Avoidance Convention (DTAC).
3. Power of the Income-tax Officer (ITO) to determine the residency status of companies.
4. Legality of treaty shopping and abuse of the DTAC.

Summary:

1. Validity of Circular No. 789 issued by the CBDT:
The primary issue in these writ petitions is the validity of Circular No. 789 issued by the CBDT on April 13, 2000. The petitioners argue that the circular is ultra vires section 119 of the Income-tax Act, 1961, and contrary to the provisions of the Indo-Mauritius DTAC. The court found that the circular, which directs tax authorities to accept certificates of residence issued by Mauritian authorities as conclusive evidence of residency, is not within the parameters of section 119. The circular effectively removes the power of the ITO to question the residency status of companies, which is a quasi-judicial function. Therefore, the circular was quashed.

2. Interpretation of the Indo-Mauritius DTAC:
The court examined the Indo-Mauritius DTAC, particularly Article 4, which defines a resident of one State. The petitioners contended that the circular encourages treaty shopping and is contrary to the spirit of the DTAC. The court held that the DTAC aims to avoid double taxation, not to provide a means for tax evasion. The circular's provision that a certificate of residence from Mauritius is conclusive was found to be inconsistent with the DTAC and the Income-tax Act.

3. Power of the ITO to determine the residency status of companies:
The court emphasized that the function of the ITO is quasi-judicial and includes the power to lift the corporate veil to determine the true residency status of companies. The circular's directive to accept Mauritian certificates without further inquiry undermines this power. The court cited precedents to assert that the ITO must be allowed to perform their duties without undue restriction from administrative circulars.

4. Legality of treaty shopping and abuse of the DTAC:
The court addressed the issue of treaty shopping, where companies set up in Mauritius solely to take advantage of the DTAC and avoid taxes in India. The court held that such practices are illegal and amount to an abuse of the treaty. The court referenced the case of McDowell and Co. Ltd. v. CTO, which condemned tax avoidance schemes. The court concluded that the circular facilitates treaty shopping and is therefore ultra vires the Income-tax Act.

Conclusion:
The writ petitions were allowed, and Circular No. 789 was quashed. The court held that the circular was beyond the powers conferred by section 119 of the Income-tax Act and contrary to the provisions of the Indo-Mauritius DTAC. The ITOs retain the authority to determine the true residency status of companies and to prevent treaty shopping. The petitioners were awarded costs of Rs. 10,000.