Central idea 

Tax treaties or protocols signed by the executive to alter or vary the provisions of the IT Act must withstand the rigours of the constitutional and statutory requirements

Key Highlights:

• Landmark Decision: The Supreme Court’s decision in Assessing Officer (International Tax) vs Nestle SA is a landmark ruling reaffirming the constitutional principle that international obligations assumed by the executive require specific legislative conditions for legal effect.
• Constitutional Framework: The judgment delves into the interplay between domestic law and international law within India’s constitutional framework, emphasizing the need for parliamentary approval when international obligations conflict with domestically enacted laws.
• Article 73 and Article 253: The powers of the Union executive, as per Article 73, are co-terminus with those of Parliament, allowing the executive to assume international obligations without legislation. However, Article 253 emphasizes the dualism between international law and municipal law, requiring a domestic legislative process for conflicting obligations.
• Delegated Powers: Parliament can delegate treaty-making powers to the executive, exemplified by tax treaties under section 90 of the Income Tax (IT) Act. The court clarifies that assuming international obligations and enforcing them domestically are distinct processes.
• Section 90 of IT Act: The judgment interprets section 90, titled “Agreement with foreign countries or specified territories,” emphasizing the necessity of a notification for the implementation of agreements related to the avoidance of double taxation.
• MFN Clauses: Most-Favoured-Nation (MFN) clauses, aimed at altering taxation provisions, must be notified for incorporation into domestic tax law. Failure to do so would create uncertainty in the tax system, with no constitutional or statutory backing for unnotified application.
• Chaos and Uncertainty: Unnotified application of MFN clauses could lead to chaos and uncertainty, with taxpayers and assessing officers interpreting and applying the clauses based on individual understanding, lacking legal foundation.
• Scope of Judgment: The judgment’s scope is limited to the need for a notification for the implementation of MFN clauses, and questions related to diplomatic accountability or the executive’s capacity to prolong the performance of international obligations were not addressed.
• Importance of Constitutional Principles: The Supreme Court’s decision is applauded for upholding democratic principles, ensuring that international obligations assumed by the executive align with constitutional and statutory requirements.

Challenges:

• Future Events Contingency: The activation of MFN clauses contingent upon future events poses challenges in their timely application and raises questions about the executive’s diplomatic accountability.

Key Phrases:

• Dualism of Legal Systems: The constitutional framework recognizes international law and municipal law as separate and distinct legal systems.
• Domestic Legislative Processes: International obligations conflicting with domestic laws must undergo legislative processes for enforceability in courts.
• Separation of Powers: The judgment underscores the importance of the doctrine of separation of powers in judicially incorporating international obligations into domestic law.

Critical Analysis:

The court’s decision provides a robust interpretation of constitutional principles, ensuring that assumed international obligations align with domestic legal processes. The focus on the necessity of notifications for the implementation of MFN clauses reflects the court’s commitment to maintaining clarity and avoiding chaos in the tax system.

Key Examples and References:

• Article 73 and 253 of the Constitution: The judgment extensively refers to constitutional provisions such as Article 73 and Article 253 to establish the legal framework.

Way Forward:

• Legislative Precision: Policymakers should ensure precision in legislative processes, especially concerning the implementation of international obligations, to avoid legal ambiguities.
• Clarity in Notification: The executive should prioritize clarity in notifications, particularly when activating clauses contingent upon future events, to prevent interpretational challenges.
• Review of Existing Treaties: Periodic reviews of existing tax treaties to ensure they align with constitutional and statutory requirements and to address any potential issues related to conflicting obligations.
• Enhanced Diplomatic Engagement: Diplomatic efforts should focus on ensuring that assumed international obligations are seamlessly integrated into domestic legal frameworks to uphold constitutional principles.

The Supreme Court’s judgment serves as a guide for maintaining the sanctity of constitutional principles in the execution of international obligations, particularly in the context of tax treaties.

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