"the highest authorities have always recognised that the subject is entitled so to arrange his affairs as not to attract taxes imposed by the Crown, so far as he can do so within the law, and that he may legitimately claim the advantage of any expressed terms or any omissions that he can find in his favour in taxing Acts. In so doing, he neither comes
under liability nor incurs blame."
A tax-saving impetus does not justify the taxing authorities or the courts in nullifying or disregarding a taxpayers otherwise proper and bona fide choice among courses of action, and the state cannot complain, when a taxpayer resorts to a legal method available to him to compute his tax liability so that the result is more beneficial to the taxpayer than was intended.51 However the difficulty arises when by such an arrangement there is a tax evasion and the contracting parties suffer unwarranted loss. In common practice Multi National Companies (MNCs) establish a Special Purpose Vehicle (SPV) in tax-efficient jurisdictions (Mauritius or Cayman Islands) for holding shares in offshore companies.
The DTAA between India and Mauritius has always been a debatable issue because of the numerous benefits it provides to corporations. Mauritius has become a hot favorite
destination for treaty shoppers, where base companies are established solely for the purpose of deriving tax benefits. In such a situation transaction falls under the radar of tax evasion and whether or not to provide relief under respective treaty becomes the bone of contention. In the present controversy to actually see whether it is a case of tax planning or done with a motive of tax evasion, the need to ‘lift the corporate veil’ is of utmost
importance. Any company which is registered as an offshore company under MOBA
can hardly carry out any business activity in Mauritius, since it cannot hold any immovable property or any shares or interest in any company registered in Mauritius other than a foreign company or another offshore company and cannot open an account in a domestic bank in Mauritius.
In the Indian context an interesting case study of Azadi bachao Andolan, Vodafone Hutchinson controversy and the Indo Mauritius bilateral tax agreement takes the center stage of tax planning resulting in Tax evasion.
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