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Wednesday, March 28, 2012

FBI — ‘Gameover’ Malware Targets Bank Accounts

FBI — ‘Gameover’ Malware Targets Bank Accounts:
‘Gameover’ Delivered Via Phishing E-Mails
Cyber criminals have found yet another way to steal your hard-earned money: a recent phishing scheme involves spam e-mails—purportedly from the National Automated Clearing House Association (NACHA), the Federal Reserve Bank, or the Federal Deposit Insurance Corporation (FDIC)—that can infect recipients’ computers with malware and allow access to their bank accounts.

The malware is appropriately called “Gameover” because once it’s on your computer, it can steal usernames and passwords and defeat common methods of user authentication employed by financial institutions. And once the crooks get into your bank account, it’s definitely “game over.”

Gameover is a newer variant of the Zeus malware, which was created several years ago and specifically targeted banking information.

How Can You Protect Yourself?

- Obviously, make sure your computer’s anti-virus software is up to date.
- Don’t click on e-mail attachments from unsolicited senders. NACHA, FDIC, and the Federal Reserve all say they don’t send out unsolicited e-mails to bank account holders. If you want to confirm there’s a problem with your account or one of your recent transactions, contact your financial institution directly.
- Don’t accept unsolicited jobs online that require you to receive funds from numerous bank accounts and then wire the money to overseas accounts—you could get caught up in a criminal investigation.

How the scheme works: Typically, you receive an unsolicited e-mail from NACHA, the Federal Reserve, or the FDIC telling you that there’s a problem with your bank account or a recent ACH transaction. (ACH stands for Automated Clearing House, a network for a wide variety of financial transactions in the U.S.) The sender has included a link in the e-mail for you that will supposedly help you resolve whatever the issue is. Unfortunately, the link goes to a phony website, and once you’re there, you inadvertently download the Gameover malware, which promptly infects your computer and steals your banking information.

After the perpetrators access your account, they conduct what’s called a distributed denial of service, or DDoS, attack using a botnet, which involves multiple computers flooding the financial institution’s server with traffic in an effort to deny legitimate users access to the site—probably in an attempt to deflect attention from what the bad guys are doing.

But that’s not the end of the scheme: Recent investigations have shown that some of the funds stolen from bank accounts go towards the purchase of precious stones and expensive watches from high-end jewelry stores. The criminals contact these jewelry stores, tell them what they’d like to buy, and promise they will wire the money the next day. So the next day, a person involved in the money laundering aspect of the crime—called a “money mule”—comes into the store to pick up the merchandise. After verifying that the money is in the store’s account, the jewelry is turned over to the mule, who then gives the items to the organizers of the scheme or converts them for cash and uses money transfer services to launder the funds.

In many cases, these money mules are willing participants in the criminal scheme. But increasingly, as part of this scheme, we see an increasing number of unsuspecting mules hired via “work at home” advertisements who end up laundering some of the funds stolen from bank accounts. The criminals e-mail prospective candidates claiming to have seen their resumes on job websites and offer them a job. The hired employees are provided long and seemingly legitimate work contracts and actual websites to log into. They’re instructed to either open a bank account or use their own bank account in order to receive funds via wire and ACH transactions from numerous banks…and then use money remitting services to send the money overseas.

If you think you’ve been victimized by this type of scheme, contact your financial institution to report it, and file a complaint with the FBI’s Internet Crime Complaint Center.



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Thursday, March 22, 2012

Indian Leaders on TIME Magazine Covers - SiliconIndia.com

Indian Leaders on TIME Magazine Covers:


Time Magazine, in its latest edition puts Modi in the erstwhile company of past Indian greats like Mahatma Gandhi, Vallabhbhai Patel, Jawaharlal Nehru and Indira Gandhi – who also adorned its cover.

‘Modi Means Business: But Can He Lead India' says the cover of TIME Magazine's Asian edition.

TIME endorses this 10-year-long journey of progress - of the state becoming "India's most industrialized and business-friendly territory". It further identifies the drivers of this success as "good planning – exactly what so much of India lacks", and a leader with the "ability to get things done."

Appreciating how Gujarat has "largely escaped the land conflicts and petty corruption that often paralyze growth elsewhere in the nation", the article talks of how "Modi has set about revamping the State's economy" leveraging on Gujarat's natural advantages. Amongst the State's many strengths that the article mentions, is Gujarat's being the only state in India where both big businesses and small farmers can expect 24 hours uninterrupted power supply - with "the premium rates paid by big business used to subsidize rural electrification." Further examples include the establishment of a "streamlined bureaucracy", as well as the State's emergence as an Auto-hub over the last 10 years – with Gujarat's auto industry growing "from one modest plant to an expected capacity of 700,000 cars in 2014".

An American weekly news magazine published since 1923, TIME is the world's largest circulation news weekly with a readership of 25 million, of which 20 million are in the U.S.

Praising Narendra Modi the person as well, TIME highlights how unlike many other politicians, "Modi doesn't put his faith on display", having no religious icons in his office – which instead has only statues of his hero, Swami Vivekananda. It further points out how "in a country where nepotism and dynastic politics are the norm, Modi's family is invisible."

TIME acknowledges the public perception of Modi being seen as a "firm, no-nonsense leader who will set the nation on a course of development that might finally put it on par with China".

The cover story highlights the achievements his state made under his reign. This is the first time an Indian regional leader has been featured on the magazine's cover.

Below is a list of Indian politicians who have been featured on the cover of TIME magazine.

1. Mahatma Gandhi:
TIME magazine named Mahatma Gandhi as the Man of the Year in 1930. He was also the runner-up to Albert Einstein as "Person of the Century" at the end of 1999. In 2011, the magazine named Gandhi as one of the top 25 political icons of all time. Gandhi has been featured on Time's cover thrice.
2. Subhash Chandra Bose:
Better known as Netaji, Subhash Chandra Bose was an Indian revolutionary who led an Indian national political and military force against Britain and the Western powers during World War II. He was one of the most outstanding leaders in the Indian independence movement and is a legendary figure in India. An appearance on the cover of TIME is an indicator of a person's notability or fame and Bose was featured on the magazine's cover in its march 7, 1938 issue.
3. Sardar Vallabh Bhai Patel:
Sardar Vallabh Bhai Patel was an Indian barrister and statesman. Patel was one of the leaders of the Indian National Congress, and one of the founding fathers of India. He is known to be a social leader of India and was on the magazine's cover in its January 27, 1947 cover.
4. Jawaharlal Nehru:
India’s first Prime Minister Jawaharlal Nehru has also been featured on the cover of TIME magazine around seven times. He was on the magazine's cover in its August 24, 1942 issue, October 17, 1949 issue, May 7, 1951 issue, July 30, 1956 issue, December 14, 1959. In the November 30, 1962 issue the covers depicts the 1962 Sino-Indian war, and also features the Chairman of the Chinese Communist Party, Mao Zedong in the background.
5. Lal Bahadur Shashtri:
Lal Bahadur Shashtri, the second prime minister of India was also featured on the magazine's cover in its August 13, 1965 issue. The TIME cover said “Tiny and turkey-necked, shy as a schoolboy in his rumpled dhoti and brown loafers, Shastri both matches the diminished stature of India and reflects its inchoate strength.” It further said “By merely surviving for 14 months in a situation that many thought might end in anarchy, Shastri has shown that India has a chance.
6. Indira Gandhi:
Former Prime Minister Indira Gandhi was on the magazine's cover in its January 28, 1966 issue. She was on the cover again in the magazine's December 6, 1971 issue, sharing space with Pakistan's then President Yahya Khan. The cover is a depiction of the 1971 India-Pakistan war. Later on Gandhi featured again on the magazine's cover after her assassination in the magazine’s November 12, 1984 issue.
7. Rajiv Gandhi:
Rajiv became the youngest Prime Minister of India when he took office at the age of 40. The former Prime Minister was also on the magazine's cover in its December 22, 1986 issue.
8. Sonia Gandhi:
Congress president Sonia Gandhi too, made it to the TIME's cover after her party regained power in the May 24, 2004 cover.
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Tuesday, March 13, 2012

No Relief for the Rape Victims in India... - The Hindu


The reason is simple: in the six decades since Crime in India first appeared, the capacities of police to investigative crimes have incrementally diminished —and the social attitudes, that deem rape a crime not worthy of devoting more resources to, haven't changed.
POOR INVESTIGATION MEANS NO JUSTICE

Evidence that investigative incompetence is leading to diminishing conviction rates across the board isn't hard to come by: convictions for murder, for example, also showed a steady decline from 44.28% in 1973 to 36.73% in 2010.

Lawyers say the reason for the relatively high conviction rates for crimes like murder or housebreaking is that witnesses can be found — or, sometimes, invented by investigators. “The whole investigation system now revolves around a witness,” says New Delhi-based lawyer Rebecca John. “In crimes like rape, there usually isn't one.”

For over five decades now, the Supreme Court has held that the testimony of rape victims doesn't have to be corroborated, for example by forensic evidence, for a conviction to be won. That does not, however, appear to have pushed up the victim's chances of getting justice.

“Let's put it this way,” says a senior New Delhi-based police officer, “it doesn't take a lot for a perpetrator to create reasonable doubt — say, an unethical lawyer and a couple of friends willing to lie about his whereabouts.”

Hard-nosed investigation would minimise this kind of fraud — but there just aren't enough resources. India needs 250 police personnel per 100,000 citizens, twice the 133 per 100,000 available in 2010. Figures released by the Ministry of Home Affairs suggest upwards of 500,000 personnel have been recruited in recent months, but the infrastructure to train them in investigation doesn't exist.

The authors of the 1953 report had, in similar circumstances, warned that “large-scale recruitment in all the ranks of the police has diluted quality to a great extent, and consequently, the standard of work has fallen.”

“I think you have to accept,” says the former Andhra Pradesh Director-General of Police HG Dora, one of India's most respected policing experts, “that the police is stretched to breaking point.”

Figures show victims of sexual crimes understand this ugly fact. From 1973 to 1983, rape complaints doubled — and then slowly plateaued out, growing at levels close to the increase of the population. Even in western countries where the social stigma associated with filing a complaint is relatively low, many victims choose suffering in silence over suffering in a court. In 1991, a United States survey placed the reporting rate for rape at 55%; a similar Canadian investigation in 1985 placed the figure at 38%.

In 2000, a national survey in the United Kingdom concluded that 4.9% of all women had experienced at least one rape or sexual assault. In Ireland, Sweden and Germany, separate studies suggested that far higher numbers of women had been attacked, ranging from 25% to 34%.

No similar nationwide survey data is available in India, though a 2007 government study found that 53% of children polled reported having experienced “one or more forms of sexual abuse.”

The NCRB figures also show one important reason why victims have an incentive to remain silent: the rapists are mainly friends, even kin. Even though the media overwhelmingly reports on dramatic cases involving attacks by strangers, all but four States reported that nine out of 10 alleged perpetrators or more were known to the victim. In Delhi, that figure was 96.6%.

Protracted ‘acquaintance rape' trials allow for pressure to be brought to bear on victims or material witnesses to withdraw their testimony. In 2010, the numbers of alleged perpetrators either in custody or out on bail awaiting trial had grown to a staggering 89,707, up from 4,991 in 1973 — numbers which point to endless courtroom delays.

The north-east exception

Fixing policing and fast-tracking trials, though, might not alone be enough to influence outcomes. The NCRB data shows that the status of women in society may influence outcomes just as much as policing. The highest conviction rates were recorded by a cluster of States in the north-east, where data on literacy, nutrition and gender ratios all suggest women have a relatively high social status.

Nagaland convicted 73.7% of alleged perpetrators, Arunachal Pradesh and Sikkim both 66.7% and Meghalaya 44.4%. Mizoram, which convicted a staggering 96.6 percent of alleged perpetrators, also had the highest level of rape reported to police — 9.1 per 100,000 residents. This suggests that community pressure on the criminal justice system forces it to take rape seriously.

Some believe that better laws could help address these problems — but the evidence isn't persuasive. In a 1992 critique of Canadian rape-law reforms, criminologists Julian Roberts and Robert Gebotys found they had simply “attract[ed] more victims into the system, rather than changing the way that the system functions.”

Susan Estrich, writing in the Yale Law Review in 1986, noted that “studies within particular jurisdictions suggest limited, if any, changes in the processing of rape cases in the aftermath of major law enactments.”

India's problems aren't unique: in the United Kingdom, the government has been working to reverse an appalling conviction rate of 5.7 per cent, measured against complaints, and 33 per cent, when measured, as in India, against cases brought to trial.

The fact is, though, that much of the world has the tools, and the intent, needed to address the problem. In India, there is little so far but debate.

Sunday, March 11, 2012

Private Complaint filed before Mangalore JMFC II reg. 22-5-2010 Mangalore Air Crash - TOI News

The Mangalore Air Crash of May 22, 2010 was all about compensation. It got a new twist with Yeshwanth Shenoy, a legal consultant to National Biodiversity Authority, and president of 812 Foundation, filing a private complaint at the JMFC II Court here naming 15 persons including Air India (AI), Directorate General of Civil Aviation (DGCA) and Airports Authority of India (AAI) for the court to take cognizance of the offences punishable under the Indian Penal Code and Aircraft Rules 1937, for various lapses. The case has been admitted by the court and will be heard on April 23.

In an interview to TOI, Shenoy claims the victims' families have been cheated over compensation and the final agreements on compensation to victims' families arrived at by Air India will not stand the test of law, if challenged.

Excerpts:

Q) Almost two years after the crash, you have filed this Private Complaint. What motivated you to do this?

A) Human Life! 158 lives for the negligence of government officials is unacceptable. People argue that train accidents take more lives, but that does not justify this.

Q) Many victims' families have signed final settlement agreement with AI. AI says that these cases will not be reopened. Is there anything foundation can do?

A) AI is not the Supreme Court. I will challenge the legality of these agreements. In my opinion, these agreements will not stand the test of law if challenged. AI in a written reply to my RTI Application has stated the lawyer has taken instruction from insurance companies. How can Air India lawyer take instruction from Insurance Company? People fail to realise that to get justice, you need to demand justice and make yourself heard. There are many families hoping to ride on the matter pending before the Supreme Court. If all represent before the Supreme Court, the Court will be better placed to know the seriousness of the matter. The families can approach 812 Foundation for free legal assistance.

Q)The victims' families are having a tough time in getting compensation; will this impact compensation pay outs?

A) What is happening with compensation payouts is cheating. People did not have proper legal representation or advice. They need money quickly to rebuild their lives and this is being taken advantage by AI. People perceive they have no choice against slow legal machinery. Proper legal advice and strategy will ensure quick settlements. I intend to interfere in the matter before theSupreme Court and bring to its attention various aspects and I am confident that the Court will come down heavily against AI.

Q) You submitted before the Magistrate that you do not need investigation by police and have enough evidence to prosecute?

A) I see no point in a police investigation. The Investigating officer (IO) of the accident filed a charge sheet on February 13, 2012 and did not find anything. In the past 18 months, I made several RTI applications which were stonewalled by government officials. I am sure the sad story of corrupt officials killing innocent people will come out. I like to call it negligence, but in fact it is murder.

Q) Why 812 Foundation? The Victims Association is already there? Why this parallel association?

A) 812 Foundation is a Trust and not an Association. 812 have larger goals and will work on aviation Safety in general in India. I have realised there is no organisation that works on Aviation Safety and I decided to fill that void. To fight the might of the State, you need strong individuals and good professionals.

Saturday, March 10, 2012

The tax aviodance debate - V Venkatesan - from The FrontLine

The Supreme Court judgment in the Vodafone case, which has come under scrutiny, brings to the fore the issue of tax avoidance.
PTI

Installing the Vodafone logo at the company's office in Mumbai in September 2007, after the deal with Hutchison Essar was completed.

“We now live in a welfare state whose financial needs, if backed by the law, have to be respected and met. We must recognise 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.... It is neither fair nor desirable to expect the legislature to intervene and take care of every device and scheme to avoid taxation. It is up to the court to take stock to determine the nature of the new and sophisticated legal devices to avoid tax and... to avoid the devices for what they really are and to refuse to give judicial benediction.”

– Supreme Court Judge O. Chinnappa Reddy in McDowell and Company Limited vs Commercial Tax Officer (1985).

TAX revenues are an indispensable source of funding a government's development initiatives in an era in which governments often lament the lack of resources to secure for all citizens the right to an adequate means of livelihood and to minimise the inequalities in income.

Therefore, when individuals and companies resort to the use of illegitimate devices to avoid tax and find the political and legal climate conducive to that, it ought to arouse the nation's social conscience if only because plugging loopholes in tax collection cannot be left entirely to the executive and the legislature.

When the government understands its commitment to collect legitimate taxes but is not successful in convincing the judiciary to endorse it, it should mean a serious institutional failure on the part of the judiciary to safeguard the constitutional philosophy.

The Supreme Court's judgment in the Vodafone case, delivered on January 20, is an instance of such failure. Put simply, here was an unprecedented tax demand by the income tax authorities on Vodafone (to the tune of Rs.11,000 crore), on the basis of an equally unprecedented transaction between Vodafone and Hutch, with a clear nexus to the sale of the latter's assets in India.

As happens in any case, two legal views are certainly possible over whether the Indian tax authorities have jurisdiction to tax Vodafone for the transaction. The Bombay High Court had ruled in 2010 that the Income Tax Department had jurisdiction to tax Vodafone. The Supreme Court's judgment on January 20 set that aside, giving huge relief to Vodafone. The question being asked in legal circles is, if two equally valid but conflicting legal interpretations are possible, why not adopt the one that could help the government earn the requisite tax revenues rather than the one that has the potential to weaken governance and leave the citizens to the mercy of market forces.

It is possible to suggest, as some tax lawyers who defend Vodafone have done, that the law does not change if the tax demand is a large amount. But in the same breath, some of them suggest that if the Vodafone case had a tax implication of just Rs.10 crore, the case would have been over before the Income Tax Appellate Tribunal itself and would not have engaged the valuable time of the High Court and the Supreme Court.

It is precisely for this reason that it needs to be asked why Vodafone did not first approach the Tribunal for redress. As the stakes are high, both the transaction and the manner in which the judiciary understood and interpreted the issue are bound to come under intense scrutiny. And because it has huge implications (and possible setbacks for the I.T. Department in future) for similar tax demands involving foreign transactions with nexus to India, experts anticipate revenue losses to the Central government running into more than Rs.1 lakh crore.

This is not to suggest that the Supreme Court's judgment is scandalous; far from it. The government's advocates who argued the case before the Supreme Court and independent lawyers like Prashant Bhushan have refrained from calling it so. By convention, apex court rulings carry huge respect even among those disagreeing with them. Yet, it is essential to subject the Supreme Court's judgment to serious and well-informed criticism if only to prepare the ground for its review.

Put in this context, Justice O. Chinnappa Reddy's observations in the McDowell case, quoted above – delivered six years before the beginning of the era of liberalisation and economic reforms in 1991 – are prescient. Clearly, Justice Chinnappa Reddy envisaged a proactive role for the judiciary to see through the fraudulent tax avoidance devices employed by taxpayers at the cost of social justice.

Now in his nineties, Justice Chinnappa Reddy must be ruing the manner in which the Supreme Court misinterpreted twice (the first time in 2003 in the Azadi Bachao case and now in the Vodafone case) in the past 10 years his holding on how the court should be smart enough to expose the legal devices that companies adopt to avoid paying tax.

Justice Chinnappa Reddy was judge of the Supreme Court from 1978 to 1987, and was among the most distinguished members of the judiciary. His decision in the McDowell case was one of the most admired judgments on tax evasion.

McDowell case

McDowell was a licensed manufacturer of liquor in Hyderabad. The company had failed to disclose the excise duty paid on liquor sold by it to wholesalers. The taxing authority, through a notice, called upon the company to show cause why assessments made should not be reopened. The company challenged the validity of this notice and argued that the excise duty paid by the buyer did not become a part of the company's turnover.

The five-judge Constitution Bench dismissed McDowell's appeal through two judgments: one by four judges and another concurring, detailed and separate judgment by Justice Chinnappa Reddy.

Justice Ranganath Misra, on behalf of himself and three other judges on the Bench, namely, Chief Justice Y.V. Chandrachud and Justices D.A. Desai, and E.S. Venkataramiah, held as follows:

“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.”

Following this holding, the Bench said in Paragraph 27:

GURINDER OSAN/AP

FEBRUARY 14, 2007: Vodafone chief executive officer Arun Sarin, right, and Hutchison Essar CEO Asim Ghosh at a press conference in New Delhi after Britain's Vodafone Group PLC had agreed to buy a 67 per cent controlling interest in Hutchison Essar Ltd for $11.1 billion.

“On this aspect one of us, Chinnappa Reddy, J., has proposed a separate and detailed opinion with which we agree.”

The above sentence became the bone of contention in arriving at the ratio of the McDowell case. Did the four judges agree entirely with Justice Chinnappa Reddy, or only with regard to his observations against the use of colourable devices to avoid payment of tax? The Supreme Court has held in the Vodafone case that the ratio of McDowell is that the four judges agreed with Justice Chinnappa Reddy only in the context of use of colourable devices to avoid payment of tax. Justice Chinnappa Reddy, however, in his separate opinion, has clearly underlined the need to depart from the “Westminster” principle and tax avoidance.

According to this British principle (laid down in Inland Revenue Commissioners vs Duke of Westminster, 1936), every man is entitled if he can to order his affairs so as to diminish the burden of tax. Justice Chinnappa Reddy held that the principle of Westminster had been given a decent burial and in that very country where the phrase ‘ tax avoidance' originated, the judicial attitude towards tax avoidance had changed and the smile, cynical or even affectionate though it might have been at one time, had now frozen into a deep frown. No one could now get away with a tax avoidance project with the mere statement that there was nothing illegal about it, he had said.

In the Vodafone case decided by the Supreme Court's three-judge Bench on January 20, the McDowell ghost returned to haunt the judiciary. The Bench comprised of Chief Justice of India S.H. Kapadia and Justices Swatanter Kumar and K.S. Radhakrishnan. In two separate judgments (Chief Justice Kapadia and Justice Swatanter Kumar delivering one and Justice Radhakrishnan authoring the second), the Bench set aside the Bombay High Court judgment in the Vodafone case.

Vodafone case

Briefly, the case concerns a tax dispute between the Vodafone Group and the Income Tax Department (hereafter referred to as Revenue) over the acquisition by Vodafone International Holdings BV (VIH), a company resident for tax purposes in the Netherlands, of the entire share capital of CGP Investments (Holdings) Ltd. (CGP), a company resident for tax purposes in the Cayman Islands on February 11, 2007.

According to Revenue, the aim of this transaction was to acquire 67 per cent controlling interest in Hutchison Essar Limited (HEL), a company resident in India. Revenue, therefore, sought to tax capital gains, arising from the sale of the share capital of CGP on the basis that CGP, while not a tax resident in India, holds the underlying Indian assets. The tax demand was a whopping Rs.11.000 crore.

VIH, on the contrary, argued that it acquired companies which, in turn, controlled a 67 per cent interest but not controlling interest, in HEL. Further, VIH contended that CGP held indirectly through other companies 52 per cent shareholding interest in HEL as well as Options to acquire a further 15 per cent shareholding interest in HEL, subject to relaxation of foreign direct investment (FDI) norms.

High Court verdict

The Bombay High Court Bench comprising Justices Dr D.Y. Chandrachud and J.P. Devadhar on September 8, 2010, upheld the Central government's contention that the Vodafone-Hutch transaction had a significant nexus with India. Once the nexus is established, income tax may extend to that person in respect of his foreign income, the Bench said. Such a nexus can be based on residence or business connection within the taxing state or the situation within the state of an asset or source of income from which the taxable income is derived, the Bench explained.

“Even though the revenue laws of a country may not be enforceable in another, that does not imply that the courts of a country shall not enforce the law against the residents of another within their own territories,” the High Court Bench held.

While concluding so, the High Court simply relied on the perception of Hutchison Telecommunication International Ltd. (HTIL), Cayman Islands, which had its shareholdings in HEL in terms of HTIL's Annual Report for 2007. The High Court found that for HTIL the transaction represented a discontinuation of its operations in India (paragraph 123).

In paragraph 124, the High Court went into the nature of the transaction from the perspective of how VIH BV looked at the events that led to the sale-purchase agreement dated February 11, 2007. The Bench then went on to analyse the relevant documents.

In paragraph 132, it concluded that it would be simplistic to assume that the entire transaction between HTIL and VIH BV was fulfilled merely upon the transfer of a single share of CGP in the Cayman Islands. “The commercial and business understanding between the parties postulated that what was being transferred from HTIL to VIH BV was the controlling interest in HEL…. HEL was at all times intended to be the target company and a transfer of the controlling interest in HEL was the purpose which was achieved by the transaction,” the Bench noted.

More important, the High Court Bench also relied on the due diligence report of Ernst & Young to emphasise that the object and intent of the parties was to achieve the transfer of control over HEL. The transfer of the solitary share of CGP, a Cayman Islands company, was put into place subsequently at the behest of HTIL as a mode of effectuating the goal.

In paragraph 134, the High Court was very specific: “The transactional documents are not merely incidental or consequential to the transfer of the CGP share, but recognised independently the rights and entitlements of HTIL in relation to the Indian business which were being transferred to VIH BV.”

In paragraph 135, the High Court further noted: “The transaction between VIH BV and HTIL was a composite transaction which covered a complex web of structures and arrangements, not referable to the transfer of one share of an upstream overseas company alone. The transfer of that one share alone would not have been sufficient to consummate the transaction.”

In the Supreme Court

Unfortunately, the Supreme Court found no merit in the High Court's findings. In order to rebut these findings, the Supreme Court resorted to an academic discussion on why this case concerns “a share sale” rather than an “asset sale”.

The Supreme Court's judgment favours a “look at” test in which Revenue looks at the entire Hutchison structure as it existed, holistically, and not adopt a dissecting approach. In other words, Revenue should not ask whether the transaction is a tax deferment/saving device, but apply the “look at” test to ascertain its true legal nature.

The court then stretched this “look at” test to be applied to every strategic FDI coming to India, as an investment destination, in a holistic manner. While doing so, it said, Revenue/courts should keep in mind six factors, namely, the concept of participation in investment; the duration of time during which the Holding Structure exists; the period of business operations in India; the generation of taxable revenues in India; the timing of the exit; and the continuity of business on such exit. The onus is on Revenue to identify the scheme and its dominant purpose, it said.

The Supreme Court frowned upon the High Court's “look through” test because, it claimed, it was inconsistent with tax policy certainty, which was crucial for taxpayers (including foreign investors) to make rational economic choices in the most efficient manner.

While examining the question whether the Supreme Court must have chosen the “dissecting/look through test” of the High Court rather than the “look at” test, a return to the question of the ratio of the McDowell judgment is imperative. Delivered as part of the five-judge Constitution Bench, Justice Chinnappa Reddy's separate but concurring judgment in that case must have been considered binding on Supreme Court Benches comprising fewer than five judges.

Azadi Bachao case

In 2003, in the Azadi Bachao Andolan case, a two-judge Bench of the Supreme Court upheld the government's appeal against the Delhi High Court judgment quashing Circular No.789 of April 13, 2000. This circular stated that the Mauritius Tax Residency Certificate issued by the Mauritius Tax Office was a sufficient evidence for accepting the status of residence and beneficial ownership for applying the Convention on the Avoidance of Double Taxation between India and Mauritius executed on April 1, 1983.

The then National Democratic Alliance (NDA) government had issued the circular because the tax authorities in India had issued notices to some shell companies incorporated in Mauritius with the purpose to invest funds in India. But these companies were controlled and managed from countries other than India and Mauritius. The circular was ostensibly aimed at instilling confidence among foreign investors who used the Mauritius route.

In the Vodafone case, the Central government submitted before the Supreme Court that the two-judge Bench wrongly decided the Azadi case. The government continues to insist that Circular No.789 is legally valid. But it is unhappy that the Bench in the Azadi case applied the McDowell ratio incorrectly while restoring the circular.

The McDowell ratio is that artificial tax avoidance devices must be brought within the tax net. Both the Azadi and Vodafone Benches of the Supreme Court, however, interpreted the ratio to mean that only colourable tax avoidance devices could be brought within the tax net. If the tax authorities try to prove precisely that a particular device is colourable by adopting a “look through” test, the effort fails as in the Vodafone case. Therefore, there is considerable force in the Central government's plea that the Supreme Court decided wrongly the Azadi and Vodafone cases by its flawed interpretation of the McDowell ratio. If a device is apparently meant to avoid tax, then it should be brought under the tax net no matter whether it is colourable or not.

There is one more reason to worry about the Supreme Court's judgment in the Vodafone case. The court has held that the offshore transaction is a bona fide structured FDI investment into India which fell outside India's territorial tax jurisdiction and was hence not taxable.

In its review petition filed before the Supreme Court, the Central government pointed out that the Vodafone transaction did not involve any inflow of monies into India because the sale consideration was paid outside India and therefore was not a case of FDI into India at all. The government has pointed out that the court failed to appreciate that the FDI policy of the Government of India was unrelated to the instant case because it did not involve any investment or inflow of money into India. The government made it clear that its FDI policy and the interpretation of taxation statutes operate in two different realms.

Whatever the outcome of this review petition in the Supreme Court, the Vodafone judgment, with its myriad aspects, will have a profound influence on Indian tax jurisprudence.

It makes sense to conclude with what Justice Chinnappa Reddy said in the McDowell judgment: “There is the sense of injustice and inequality which tax avoidance arouses in the breasts of those who are unwilling or unable to profit by it…. Last but not the least is the ethics (to be precise, the lack of it) of transferring the burden of tax liability to the shoulders of the guileless good citizens from those of ‘artful dodgers'.”

To the defenders of the Vodafone-Hutch deal, these observations of Justice Chinnappa Reddy may appear to be totally unnecessary to decide the facts of the McDowell case. To many, however, he had the foresight to anticipate that tax avoidance could take ingenious forms, and that it was unfair to accord it any legitimacy.'via Blog this'

Thursday, March 8, 2012

Of judges and their philosophies - From The Frontline

Of judges and their philosophies:

V. VENKATESAN
Interview with Prof. Mohan Gopal, director, Rajiv Gandhi Institute for Contemporary Studies, New Delhi.



PROFESSOR Mohan Gopal, director of the Rajiv Gandhi Institute for Contemporary Studies, (RGICS), New Delhi, is concerned about the implications of the Vodafone judgment for governance. He is well known for his scholarship in constitutional, and his previous tenures, as the head of the National Law School, Bangalore, and the National Judicial Academy, Bhopal, have been inspiring to both students and practitioners of law. Excerpts from an interview he gave Frontline:

What, according to you, are the legal flaws in the Vodafone judgment?

The issue is not whether the judgment is legally flawed. A sound legal argument can be canvassed in support of the two opposing contentions in this case – as is seen in the quite brilliant judgment of Justice Dhananjay Chandrachud in the Bombay High Court on the one hand, and in the erudite, succinct and tightly reasoned judgment of the Chief Justice of India on the other – both excellent judgments although they reach opposite conclusions.

What distinguishes the two judgments is in fact the bona fide differences in judicial approaches of the two judges as individuals, not the state of the law or the facts of the case. Justice Chandrachud's judgment is acutely concerned about judicial deference to the legislature in a democracy. He writes:

“Judicial doctrine which is designedly intended by the Constitution to be isolated from the rough and tumble of democratic accountability to electoral colleges must, therefore, be structured so as not to intrude upon the field of legislative policies which lies within the domain of Parliament.”

Justice Kapadia's judgment takes careful account of the business environment and foreign direct investment needs.

Justice [K.S.] Radhakrishnan, in his concurring judgment, writes, “FDI… is indispensable for growing economy like India [ sic]”.

The fact of the matter, well recognised in the jurisprudential school called legal realism, is that the individual approach of the judge is even more decisive in judicial decisions than the law or the facts.

What would have happened if, hypothetically, in this case, Justice Chandrachud had been in the Supreme Court and Justice Kapadia and Justice Radhakrishnan in the High Court? The consequences for the country would have been enormous. We may have been able, for example, to receive billions of dollars of additional tax revenue and bridge a part of the affordability gap for universal coverage in the food security policy.

If this is the case, has not the time now come in India for us also to engage with the issue of the personal approach and philosophy of judges more openly and directly – as other democracies do? How long will we stick to the legal fiction that the personal background and the social, economic and political philosophies of judges do not enter their judicial decision-making?

Judges should be firmly committed to the values and philosophy of our Constitution (not to the government or party of the day) because they have assumed for themselves the role of guardians of the Constitution.

ATUL YADAV/PTI

CHIEF JUSTICE OF INDIA S.H. Kapadia and (below) Justice Dhananjay Y. Chandrachud of the Bombay High Court.

What is the relevance of the constitutional philosophy to this judgment? I would argue that the Bombay High Court judgment is more in line with the constitutional philosophy than the Supreme Court judgment for two reasons. First, the passage from Chandrachud shows a conscious judicial deference to the legislature, based explicitly on the constitutional vision. Second, the Bombay High Court judgment is more in line with the constitutional scheme of the role of the state as a proactive guardian of the public interest (rather than a state that yields excessively to the market). It provides greater latitude for the state to safeguard public interest in collecting taxes (badly needed for development) by “looking through” rather than merely “looking at” complex financial arrangements in a globalised world in which not only investment and growth but crime and embezzlement are also on the rise.

The Supreme Court judgment, on the other hand, reveals an approach that is concerned about limiting tax investigation and encouraging investment flows into the country.

SHASHI ASHIWAL


Neither judgment, in my view, adequately reflects the constitutional philosophy towards the obligation of citizens and corporates in a poor country to pay taxes to the fullest extent required by law, rather than plan to avoid or evade them.

What are the consequences of the judgment for tax revenue and development?

The Supreme Court judgment places important limitations on the revenue authorities. The “look at/look through” framework is in my view, neither valid nor justifiable, and as the Supreme Court itself suggests, this is a matter of legislative policy. This should be corrected. Equally, the excessively narrow interpretation of the tax nexus with India will also have to be corrected. Unless this is done, the consequences for revenue and development will be negative without any prospect of commensurate growth in investment – except perhaps growth in the number of well-disguised fraudulent tax schemes that will hide coyly behind “look at” limits!

It is pointed out that the principle of recusal is not relevant in this case because the Chief Justice's son, Hoshnar Kapadia, joined Ernst & Young – a firm which advised Vodafone on its tax dispute – after the February 2007 deal, and that he joined E&Y India and not E&Y U.K. It is also pointed out that the Income Tax Department used E&Y U.K.'s report as evidence against Vodafone.

I do not know the facts. From what I have seen in the media, the conflict of interest argument seems far-fetched in terms of currently accepted judicial standards for recusal. Chief Justice Kapadia has a well-deserved and hard-earned reputation for the highest integrity. We should avoid raising questions about the integrity of public officials so lightly.

The judges seem to have reached the decision by their curious interpretation of the McDowell judgment (Para 64). Is their interpretation of the McDowell judgment, especially Justice O. Chinnappa Reddy's observations on the need to depart from the “Westminster” principle, correct?

I am not persuaded by the Supreme Court's interpretation of McDowell in this case. In my view, Justice Chinnappa Reddy and the majority were equally clear in their decision to depart from the Westminster principle, and the Vodafone judgment erred in not following Justice Chinnappa Reddy's holding in this regard.

Did the Bench miss the subtle distinction between tax planning and tax avoidance and tax avoidance and tax evasion?

Not all tax planning is bona fide. I hope the judgment will not be read as giving a green signal to all tax planning even if the plan is to evade or avoid taxes.

As a matter of political philosophy derived from Gandhian values that underlie our Constitution, I would argue that tax reduction, avoidance and evasion should all be considered illegitimate. The purpose of the Constitution and the state it constitutes is to bring about a social revolution to bring swaraj to the masses. This has been well recognised, including by the Supreme Court of India (see for example the judgment in the S.P. Gupta case). The state has inadequate resources to improve the lot of the poorest, as we are repeatedly told. If this is the case, the policy of the state and the duty of corporates must be to collect, and to contribute, as much tax as possible under the law. Business transactions must be designed to achieve business goals. Tax avoidance, evasion or reduction may be a relevant business goal in rich countries, but not in India. This vision should guide Indian courts. The blind adoption by courts of British tax jurisprudence in this regard without due consideration of the differences in the role and need for taxes in a poor country such as India, and our constitutional values, is unfortunate.

Narrow interpretation

The exclusion of “indirect transfers” from Section 9 of the Income Tax Act and, as a consequence, the refusal to consider it as a “look through” provision was another setback to the I.T. Department. Was the Supreme Court correct in interpreting Section 9 in the manner that it did?

The excessively narrow interpretation of Section 9 is not in my view adequately justified in the judgment. There was no intention on the part of the legislature to exclude indirect transfers. It is not clear how this provision was in effect “read down”. This matter may need to be corrected legislatively.

In Paragraph 73, the Bench seeks to distinguish between preordained transaction (created for tax avoidance purposes) and a transaction which evidences investment to participate. In the latter, a dissecting approach is not warranted. Is the Bench correct in its emphasis on the “look at” approach rather than on the dissecting approach?

It is not clear how the tax authorities would be able to determine whether a transaction is intended for tax avoidance or evasion or for investment to participate unless the transaction is first “looked through” carefully and “dissected”. The Supreme Court judgment itself appears to “dissect” the impugned transaction in some detail, rather than merely “look at” it, before concluding that it was not intended for tax avoidance. After the dissection, the judgment seems to suggest that the transaction should be analysed “as a whole” rather than its individual elements looked at in isolation.

Again, if individual elements clearly show a plan for tax evasion, it is not clear how they can be ignored by the tax authorities. These distinctions appear interesting from a theoretical point of view, but may be very difficult to apply.

Do you think ‘Azadi' was incorrectly decided?

In the relevant part of the Azadi judgment the Supreme Court overturned a Delhi High Court judgment that [to use the Vodafone terminology] upheld a “look through” approach and struck down a “look at” approach that was mandated by an impugned circular. In so doing, the Supreme Court limited the role of the tax authorities, who have duties and responsibilities to investigate the true nature of transactions. However, in that case, the “look at” limit came from the executive itself in the form of the impugned circular, rather than from the judiciary. As a result, the Supreme Court cannot be faulted in the Azadi case for upholding a policy choice – erroneous as it may have been – made by the executive.

The “look at”/“look through” distinction should be removed and the tax authorities should be fully empowered to investigate transactions as needed (with adequate safeguards against harassment and corruption).

Justice Radhakrishnan has held in paragraph 90 of his judgment that the principle of Duke of Westminster is still valid. Your comments.

The concurring judgment does not quite say that the Westminster case is still valid. It simply says, in effect, that it is not fully dead. So we may conclude that the “Duke of Westminster” case is in a deep coma and hence not of any functional relevance.

In any case, the time has come, 65 years after Independence, for us to develop the confidence to decide our tax cases without relying on whether or not old English decisions are dead, alive or in a coma.

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