The ‘author’s note’, as per one’s understanding, bears on its sleeves the optimism that ‘form’ should prevail; and is to the effect that,-had care been taken in the drafting of the agreement, that “would have saved them huge amount of taxes.”
I have no doubt in my mind that – ideally speaking, that should have been regarded, and uniformly/universally accepted, - particularly for the purposes of ‘income taxation’, - as THE CORDINAL RULE / PRINCIPLE to apply; except, of course, in extremely odd cases where the “form” as designed and adopted clearly bears out, BEYOND ANY IOTA OF DOUBT’ that it has been deliberately so done, and clearly camouflaged, with the sole aim at ‘evasion of taxation’.
Be that as it should, THE TRAGEDY IS THAT, - just as in any other matter, the ‘ground reality’ is quite different. For an appreciation of this point, in a proper light, one may usefully go through the line of court cases, in which this proposition- that is, – “form v substance-, which should prevail” has been dealt with and adjudicated upon. For that matter, even the Vodafone case, on which the assessee in the referred ‘tribunal case’ has made an attempt to hang its coat on, brings out the controversy on, but left it alive.
One may also look up my related comment @ the following link:
Proper drafting of agreements necessary to avoid unnecessary litigation and tax liabilities
(Sent but unpublished till now! - since published)
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