Section 97 - Arrangement to lack commercial substance. - Income-tax Act, 1961

1 [****] 3 [****] 4 [97. Arrangement to lack commercial substance . (1) An arrangement shall be deemed to lack commercial substance, if (a) the substance or effect of the arrangement as a whole, is inconsistent with, or differs significantly from, the form of its individual steps or a part; or (b) it involves or includes (i) round trip financing; (ii) an accommodating party; (iii) elements that have effect of offsetting or cancelling each other; or (iv) a transaction which is conducted through one or more persons and disguises the value, location, source, ownership or control of funds which is the subject matter of such transaction; or (c) it involves the location of an asset or of a transaction or of the place of residence of any party which is without any substantial commercial purpose other than obtaining a tax benefit (but for the provisions of this Chapter) for a party; or (d) it does not have a significant effect upon the business risks or net cash flows of any party to the arrangement apart from any effect attributable to the tax benefit that would be obtained (but for the provisions of this Chapter). (2) For the purposes of sub-section (1), round trip financing includes any arrangement in which, through a series of transactions (a) funds are transferred among the parties to the arrangement; and (b) such transactions do not have any substantial commercial purpose other than obtaining the tax benefit (but for the provisions of this Chapter), without having any regard to (A) whether or not the funds involved in the round trip financing can be traced to any funds transferred to, or received by, any party in connection with the arrangement; (B) the time, or sequence, in which the funds involved in the round trip financing are transferred or received; or (C) the means by, or manner in, or mode through, which funds involved in the round trip financing are transferred or received. (3) For the purposes of this Chapter, a party to an arrangement shall be an accommodating party, if the main purpose of the direct or indirect participation of that party in the arrangement, in whole or in part, is to obtain, directly or indirectly, a tax benefit (but for the provisions of this Chapter) for the assessee whether or not the party is a connected person in relation to any party to the arrangement. (4) For the removal of doubts, it is hereby clarified that the following may be relevant but shall not be sufficient for determining whether an arrangement lacks commercial substance or not, namely: (i) the period or time for which the arrangement (including operations therein) exists; (ii) the fact of payment of taxes, directly or indirectly, under the arrangement; (iii) the fact that an exit route (including transfer of any activity or business or operations) is provided by the arrangement. ] *************** NOTES:- 1. Omitted vide Section 29 of the Finance Act 1965 w.e.f. 01-04-1965 before it was read as, Applicability of Act to super-tax 97. (1) All the provisions of this Act relating to the charge, assessment, collection and recovery of income-tax shall apply, so far as may be and save as otherwise provided, to the charge, assessment, collection and recovery of super-tax. (2) Save as expressly provided in any other section in this Chapter, the provisions of section 4, section 181 and sub-section (1) of section 191 and of Chapters VII and VIII and rules 7 and 8 of Part A of the Fourth Schedule and rule 3(c) of the First Schedule shall not apply to the charge, assessment, collection and recovery of super-tax. 2. Inserted vide Section 41 of the Finance Act 2012 w.e.f. 01-04-2014 3. Omitted vide Section 25 of the Finance Act, 2013 w.e.f. 01-04-2014 before it was read as, 2 [97. Arrangement to lack commercial substance. (1) An arrangement shall be deemed to lack commercial substance if (a) the substance or effect of the arrangement as a whole, is inconsistent with, or differs significantly from, the form of its individual steps or a part; or (b) it involves or includes (i) round trip financing; (ii) an accommodating party; (iii) elements that have effect of offsetting or cancelling each other; or (iv) a transaction which is conducted through one or more persons and disguises the value, location, source, ownership or control of funds which is the subject matter of such transaction; or (c) it involves the location of an asset or of a transaction or of the place of residence of any party which is without any substantial commercial purpose other than obtaining a tax benefit (but for the provisions of this Chapter) for a party. (2) For the purposes of sub-section (1), round trip financing includes any arrangement in which, through a series of transactions (a) funds are transferred among the parties to the arrangement; and (b) such transactions do not have any substantial commercial purpose other than obtaining the tax benefit (but for the provisions of this Chapter), without having any regard to (A) whether or not the funds involved in the round trip financing can be traced to any funds transferred to, or received by, any party in connection with the arrangement; (B) the time, or sequence, in which the funds involved in the round trip financing are transferred or received; or (C) the means by, or manner in, or mode through, which funds involved in the round trip financing are transferred or received. (3) For the purposes of this Chapter, a party to an arrangement shall be an accommodating party, if the main purpose of the direct or indirect participation of that party in the arrangement, in whole or in part, is to obtain, directly or indirectly, a tax benefit (but for the provisions of this Chapter) for the assessee whether or not the party is a connected person in relation to any party to the arrangement. (4) The following shall not be taken into account while determining whether an arrangement lacks commercial substance or not, namely: (i) the period or time for which the arrangement (including operations therein) exists; (ii) the fact of payment of taxes, directly or indirectly, under the arrangement; (iii) the fact that an exit route (including transfer of any activity or business or operations) is provided by the arrangement. ] 4. Inserted vide Section 26 of the Finance Act, 2013 w.e.f. 01-04-2016