1. INTRODUCTION
‘Like mothers, taxes are often misunderstood, but seldom forgotten’ – Lord Bramwell
Lord Bramwell’s words reiterate that one cannot escape the rigours of taxation as it is inevitable. There is considerable certainty regarding the levying of taxes by a State, but the certainty buck stops there. The functional features of taxation have led to various complexities, eventually paving the way for tax uncertainty. Tax uncertainty is on account of various factors; the OECD-IMF report on tax certainty1, inter alia identifies an ineffective dispute resolution mechanism as one of the factors for tax uncertainty. Due to the uncertainty element, genuine taxpayers have suffered the wrath inter alia through prolonged disputes, thus losing faith in the system. On the other hand, tax shenanigans have benefited through tax avoidance, leaving the administration with empty coffers. Tax revenue being the cornerstone of a stable economy, the economic impact that tax uncertainty causes is undesirable for all the stakeholders concerned. Therefore, fostering tax certainty remains at the top of the agenda and a need-of-the-hour measure for the States.
As we draw the curtains on this insightful Multilateral Instrument (MLI) Series, we will focus majorly on the dispute resolution framework under the MLI in this final edition. This measure marches to foster tax certainty. However, unlike the other substantive provisions in the MLI, the success of the dispute resolution mechanism relies on an effective procedural framework which will be the focus of our discussion.
1 2019 Progress Report on Tax Certainty (July,
2019)
2. TAX TREATY DISPUTE RESOLUTION – PRE-BEPS ERA
‘No matter how thin you slice it, there will always be two sides’ – Baruch Spinoza
The purpose of tax treaties is to reduce barriers to cross-border trade and investment. The advent and growth of multinational corporations in India created a significant increase in tax treaty and transfer pricing disputes. Characterisation of receipts, arm’s length pricing, treaty entitlement, permanent establishment (PE) and attribution of income, etc., are common cross-border taxation disputes. A tax treaty will only achieve its goals if the taxpayers can trust the Contracting States to apply the treaty in letter and spirit.
If one Contracting State tax authority does not do so, the affected taxpayer has the right to contest this action of the tax authority through that state’s legal system. However, the domestic dispute resolution mechanism may be laborious, time-consuming and expensive.
Therefore, to resolve the double taxation issues, the tax treaty provides for a mechanism by way of Mutual Agreement Procedure (MAP)2, whereby the competent authorities (CA) of the relevant jurisdictions consult each other and endeavour to resolve the differences or difficulties in the interpretation or application of the tax treaty.
However, despite the advantages that MAP offers to resolve disputes, various shortcomings and challenges puncture its effectiveness. Some of the shortcomings in the MAP framework are:
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Shortcomings of the MAP 1.0 framework
•
No impetus and mandate on the CA to solve a dispute.
•
No deadline or timetables to resolve the disputes; hence the process is
protracted unreasonably and time-consuming.
•
Lack of domestic law support such as non-implementation of MAP due to
domestic law conflict.
•
Lack of training and capacity-building initiatives by Governments for its CA
on international tax issues owing to financial constraints.
|
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Shortcomings of the MAP 1.0 framework (Continued)
•
Lack of guidance in MAP processes for taxpayers in emerging economies on the
procedural and administrative aspects for initiating the MAP.
•
Lack of dedicated and experienced resource personnel to focus on MAP, leading
to an increase in MAP inventory.
•
Lack of transparency from the taxpayers’ perspective as they are not involved
in the process; hence, taxpayers are apprehensive about resorting to MAP.
•
From a taxpayer’s perspective, there are risks of double taxation due to
denial of corresponding adjustments in other state or re-opening of tax
assessments in the other state, delay in issuing refunds, etc3.
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2 Article 25 of the Model Conventions (Pre-2017
editions)
From India’s standpoint, despite being one of the developing countries to have a large inventory of MAP cases, the MAP framework has not been effective owing to the shortcomings identified in the Table above. Lack of procedural guidance from the CBDT, clarity, transparency in the process and, more importantly, an extremely time-consuming process with non-TP cases taking more than 100 months to arrive at a resolution4 are some of the pain points. Hence, the need for a more effective MAP framework was imperative considering the ever-increasing inventory leading to tax uncertainty.
3. MAP 2.0 – BEPS MEASURES
The introduction of the BEPS Action Plan (AP) provided various measures to eliminate the scope for tax avoidance. However, the implementation of these measures involved changes in the domestic laws and tax treaty (through MLI). Therefore, with the introduction of BEPS measures and also with the existing MAP framework being inefficient, the possibility of growing tax uncertainty was inevitable. To ensure certainty and predictability for business / taxpayers, AP 14 – Making Dispute Resolution Mechanisms More Effective was initiated. BEPS AP 14 dealt with various aspects to improve the dispute resolution mechanisms (in addition to remedies under domestic laws) and suggested some best practices that countries could emulate to achieve certainty in a time-bound and effective manner.
3 Carlos
Protto Mutual Agreement Procedures in Tax Treaties: Problems and Needs in
Developing Countries and Countries in Transition – Intertax, Volume 42, Issue
3; and Jacques Malherbe: BEPS – The Issues of Dispute Resolution and
Introduction of a Multilateral Treaty
4 OECD MAP 2016 Statistics
5 Information related to the Inclusive
Framework is available at http://www.oecd.org/tax/beps/beps-about.html
Minimum Standards: Minimum Standards are certain provisions to which all countries and jurisdictions within the BEPS inclusive framework5 have committed and must comply with. AP 14 included a minimum standard for participating countries that should ensure the following aspects:
(i) Proper Implementation & Process: Treaty-related obligations on MAP are fully implemented in good faith6 and MAP cases are resolved on time.
(ii) Prevention & Resolution of Disputes: The administrative processes should promote the prevention and timely resolution of treaty-related disputes.
(iii) Availability & Accessibility to MAP: Taxpayers meeting the requirements under Article 25(1) of the OECD Model Convention can access the MAP.
In addition to the above, the AP 14 also provided certain best practices for implementation. The AP also addressed those members of the Forum for Tax Administration (FTA) who will undertake a peer review mechanism for effective implementation of the minimum standards7. It is to be noted that India is a member of the FTA.
The AP 14 report, which contains the minimum standard and best practice recommendations, is transposed into the CTAs by introducing it in the MLI. Part V of the MLI – Improving Dispute Resolution, focuses on Article 16 dealing with a strengthened MAP Framework for an effective resolution of treaty disputes, and Article 17 –Corresponding Adjustments, deals with MAP accessibility for transfer pricing cases to eliminate economic double taxation.
3.1 Article 16 – MAP 2.0
The salient feature of Article 16 and India’s position is as follows:
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Article
|
Scope
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Inference
|
|
16(1)
First sentence
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Taxpayer considers that action of one or both the contracting
states will result in taxation that is not
according to the CTA. Therefore, irrespective of the remedy under
domestic law, the dispute can be presented to the CA of either contracting state
|
Availability and flexibility in access to MAP: Aggrieved taxpayer can
approach for MAP resolution either of the contracting states and not
necessarily its resident jurisdiction
|
|
[Continued]
Second sentence
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The time limit for presenting the case must be within three
years from the first notification of the action resulting in taxation
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Time Limit: For initiating MAP, the aggrieved taxpayer must
present his grievance within a minimum time limit of three years. This is to
ensure that there is no late claim made to burden the tax administration8
and at the same time give adequate time to the taxpayers to initiate MAP
access
|
|
India’s Position:
Article 16(1) First
sentence:
India has reserved the right
to the application of this First sentence. As per India’s view, residents of
the contracting state must approach only their respective CA to access the
MAP.
Consequent to its reservation, India is bound to introduce a
bilateral consultation or notification process if the Indian CA considers the
objection raised by the taxpayer in a MAP request as being not justified. The
recent MAP guidance issued by India9 addresses this aspect,
wherein India will notify the treaty partner about the reasons for which the
MAP application cannot be accepted and solicit the treaty partner’s response
to arrive at a decision.
Article 16(1) Second
sentence:
India has not reserved this sentence as the existing CTA that
India has entered into contains the specified time limit of three years
except for four CTAs10 where the existing timeline for initiating
the MAP is less than three years. India has notified these four CTAs. These
four CTAs will be modified by Article 16(1) of the MLI to include a minimum
time limit of three years, where an aggrieved taxpayer can initiate MAP with
the respective CA where the taxpayer is a resident
|
6 Echoing Article 31 and 32 of Vienna
Convention
7 OECD (2015), Making Dispute Resolution
Mechanisms More Effective, Action 14 – 2015 Final Report, OECD/G20 Base Erosion
and Profit Shifting Project, OECD Publishing, Paris
|
Article
|
Scope
|
Inference
|
|
16(2)
First sentence
Second sentence
|
If objection appears to be justified and the CA is not able to
achieve a satisfactory solution by himself, then the case must be resolved by
mutual agreement with the CA of the other state – Bilateral MAP
|
Bilateral MAP – This clause ensures that where the CA cannot
resolve cases unilaterally, the CA concerned must enter into discussions with
his counterpart CA for a resolution
|
|
The contracting states’ settled MAP agreement must be
implemented irrespective of the timeline prescribed under the domestic laws
|
Implementation of MAP agreement: This clause is to provide
certainty to taxpayers that implementation of MAP agreements will not
|
|
[Continued]
|
|
be obstructed by any time limits in the domestic law of the
jurisdictions concerned
|
|
India’s Position:
Article 16(2) First
sentence:
There is no reservation clause for the said
provision. Further, all the CTAs India has entered into contain the said
clause except for the CTAs with Greece and Mexico. India has duly notified
these two CTAs, which do not contain the language equivalent to Article 16(2)
First sentence. Both Greece and Mexico must make a similar matching
notification by including the India treaty in their notification list
according to which the First sentence of Article 16(2) shall apply to these
treaties.
Article 16(2) Second
sentence:
India has not made any reservation to this clause as most of the
treaties it has entered into contain a similar language. However, India has
notified ten CTAs which do not contain the language specified in
Article 16 (2) Second sentence. Therefore, Article 16(2) Second sentence will
apply to these ten CTAs, if these treaty partners make a similar matching
notification by including the India treaty in their notification list.
Failure to notify by any of these ten treaty partners will result in a
mismatch notification, whereby the CTA retains status quo, i.e., it
remains unaltered by the MLI provision
|
|
Article
|
Scope
|
Inference
|
|
16(3)
First sentence
Second
sentence
|
If any difficulty or doubt arises as to the interpretation or
application of CTA, then the CA shall endeavour to resolve this by mutual
agreement
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Dispute Prevention: Cases may arise concerning the interpretation or
the application of tax treaties that are generic and do not necessarily
relate to individual cases. In such a scenario, this provision makes it
possible to resolve difficulties arising from the application of the
Convention
|
|
CAs may also consult together to eliminate double taxation in
cases not provided under CTA
|
This provision enables the competent authorities to deal with
such cases of double taxation that do not come within the scope of the
provisions of the Convention. For example, resident of a third state having
PE in both the contracting states
|
|
India’s Position:
Article 16(3) First
sentence:
There is no reservation clause for this provision. Further, all
the CTAs India has entered into contain the said clause except for two
treaties,
|
|
[Continued]
i.e., with Australia and Greece. India has duly notified these
two treaties which do not contain the language equivalent to Article 16(3)
First sentence. Therefore, both Australia and Greece shall notify the treaty
with India, according to which Article 16(3) First sentence shall apply to
the CTA concerned and be modified. Failure to notify by these two treaty
partners will result in a mismatch notification, whereby the CTA retains status
quo, i.e., it remains unaltered by the MLI provision
Article 16(3) Second
sentence:
There is no reservation clause for this provision. Further, a
majority of the CTAs that India has entered into contain the said clause
except for six CTAs11. India has notified the six CTAs
which do not contain the language specified in Article 16(3) Second sentence.
Therefore, the Article 16(3) Second sentence will apply to these six CTAs if
these treaty partners make a similar matching notification by including India
in their notification list. Failure to notify by any of these six treaty
partners will result in a mismatch notification, whereby the CTA retains status
quo, i.e., it remains unaltered by the MLI provision
|
8 Para 20 – Commentary on Article 25, OECD
Model Convention, 2017
9 MAP Guidance/2020, F.No 500/09/2016-APA-I,
Dated 7th August, 2020, CBDT, Government of India
10 Belgium, Canada, Italy and UAE
3.2 Article 17 – Corresponding Adjustments
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Article
|
Scope
|
Inference
|
|
17(1)
|
Unilateral corresponding
adjustment
– Normally, in a transfer pricing adjustment, a taxpayer in a Contracting
Jurisdiction (State A), whose profits are revised upwards, will be liable to
tax on an amount of profit which has already been taxed in the hands of its
associated enterprise in another Contracting Jurisdiction (State B)
In such a scenario, State B shall make an appropriate adjustment
to relieve the economic double taxation
|
Mitigating economic double taxation: The provision is a
replicated version of Article 9(2) of the OECD Model Convention. Further, the
provision is to ensure that jurisdictions provide access to MAP in transfer
pricing cases
|
|
India’s Position:
India has made its reservation under Article 17(3)(a) for the
right not to include the corresponding adjustment clause in the CTAs, which
already contains a similar clause
[Article 9(2) in the respective tax treaties]. Therefore, Article 17(1) will
have no impact on those CTAs. However, in respect of those CTAs that do not
contain the corresponding adjustment clause [for example, the India-France
CTA12], the corresponding adjustment clause will be included to
modify the same
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3.3 The interplay of other articles of MLI with MAP
Part V of the MLI includes mechanism Article 16 of the MLI. As mentioned earlier, the introduction of the BEPS measure through MLI may create significant disputes in the form of disagreement on CTA interpretation, application of anti-abuse provisions and denial of treaty benefits, etc. To effectively address these disputes and eliminate double taxation, taxpayers access MAP to address their dispute through the framework and minimum standard under Article 16 of the MLI. Further, apart from the generic framework under Article 16, there are situations where other substantive provisions of MLI allow taxpayers to access MAP to resolve tax treaty disputes.
11 Australia, Belgium, Greece, Philippines,
Ukraine and UK
12 Synthesised Text between India and France CTA
available at https://www.incometaxindia.gov.in/dtaa/synthesised-text-of-mli-and-india-france-dtac-indian-version.pdf
India’s position concerning these other substantive provisions is as follows:
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Article
|
Particulars
|
Scope
– MAP accessibility
|
India’s
Position
|
|
4(1)
|
Dual Resident Entities
|
If a person other than an individual is resident in more than
one state, the CA shall endeavour to determine residency for CTA
In the absence of an agreement, the person shall not be entitled
to relief or exemption from tax except to the extent and manner agreed by the
CA. In effect, CAs can agree and provide relief at their discretion
|
India has notified 91 treaties (except Greece and Libya).
Further, India has agreed to the discretion of CAs to provide relief in a
case where dual residency is not resolved
Australia and Japan have reserved application of discretionary
relief. Hence, discretionary relief cannot be granted under these treaties by
the competent authorities
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7(4)
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Principal Purpose Test (PPT)
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Deny treaty benefits if reasonable to conclude that one of the
principal purposes of the arrangement is to obtain tax benefits
Based on MAP request, the CA can provide treaty relief after
consideration of facts and circumstances
|
India has not opted for the discretionary relief provision as it
has notified the same under Article 7(17)(b). Therefore, once the treaty
benefits are denied, the CAs cannot provide any relief at their discretion
Notwithstanding the above, the taxpayer can avail the treaty
benefit if it can be established that the tax benefit is in accordance with
the object and purpose of the CTA
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|
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[Continued]
as stipulated under
Article 7(1) without resorting to MAP. Under this circumstance, the tax
authorities can grant treaty benefits
|
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7(12)
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Specified Limitation of Benefits (SLOB)
|
If a person is not a qualified person as per para 7(9) nor
entitled to benefits as per para 7(10)/7(11), the CA may grant relief subject
to certain conditions and requirements
|
India has opted for the provision of SLOB in addition to PPT13
However, the provision of SLOB shall apply to Indian tax
treaties only if the other contracting states have also notified SLOB
provisions
|
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10(3)
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PE situated in a third jurisdiction
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Suppose the benefit of CTA is denied under
para 10(1) regarding the income derived by a resident. In that case, the CA
of another contracting state (source state) may nevertheless grant these
benefits subject to consultation with the resident state CA
|
India is silent on this Article. Accordingly, the Article will
be applicable subject to notification and reservations made by the other
contracting jurisdiction as per Articles 10(5) and 10(6) of the MLI
|
From India’s standpoint, Article 7 has a significant impact. The application of PPT to evaluate treaty entitlement would create significant interpretation issues and the taxpayers may explore MAP compared to the domestic dispute mechanism.
13 A total of 14 countries including India have
opted for SLOB. Greece opted for asymmetric application as per Article 7(b) of
MLI; this thereby allows India to adopt SLOB along with PPT even though Greece
shall apply only PPT
14 OECD (2019), Making Dispute Resolution More
Effective – MAP Peer Review Report, India (Stage 1): Inclusive Framework on
BEPS: Action 14, OECD/G20 Base Erosion and Profit Shifting Project, OECD
Publishing, Paris, https://doi.org/10.1787/c66636e8-en
4. MAP 2.0- DOMESTIC MEASURES TAKEN BY INDIA
- The BEPS AP 14 had suggested a peer review mechanism to ensure adequate implementation of the suggested minimum standard and recommendations. As a result, the peer review undertaken for India in 201914 highlighted India’s progress on the MAP programme and suggested recommendations for more effective functioning of the MAP. According to the peer review and BEPS AP 14, the Indian tax authorities have taken significant steps to reform the MAP framework and make it productive. Two significant reforms include:
- The CBDT amended Rule 44G of the Income-Tax Rules and substituted it with the erstwhile Rules 44G and 44H15. The amended Rule deals extensively with the implementation and the procedural framework for the MAP process.
- In line with the BEPS AP 14 recommendation, India had released a detailed guidance note on MAP16. The MAP guidance addresses many of the open issues on procedural aspects of MAP and, more importantly, clarifies key practical nuances absent in the pre-BEPS era regime for the taxpayers to resort to.
- Broad features of the MAP guidance issued by the Indian tax administration, which acts as a handy tool for taxpayers in understanding the MAP framework, are as follows:
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Part
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Nature
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Brief
aspects covered
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A
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Introduction and basic information
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This part addresses the following aspects:
Manner of filing MAP request (Form 34)
Contents of an MAP application
Procedure to be followed in case MAP is filed in the home
country against the order of the Indian tax authority
Procedure to be followed by CA of India upon receipt of a MAP
request
Participation of Indian CA in multilateral MAP cases
Communication of views between CAs through a position paper
India has committed to resolving the MAP cases within an average
timeframe of 24 months
|
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B
|
Access and denial of MAP
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Access to MAP
Provide instances where MAP can be filed
Commitment to provide MAP access in a situation where domestic
anti-abuse provisions are applied Clarification of MAP access in case of an
order under section 201
|
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[Continued]
B
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Access and denial of MAP
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The situation where MAP access will be granted but Indian CA
will not negotiate any outcome other than what was achieved earlier – such as
Unilateral APA, Safe Harbour, order of Income-tax Appellate Tribunal. In
these circumstances, Indian CA will request the other treaty partner to
provide correlative relief
Denial of MAP in situations where
Delay in filing MAP application
The objection raised by the taxpayer is not justified – Treaty
partner will be consulted before denial
Incomplete / defective application is not rectified within a
reasonable time, or non-filing of additional information within the time
limit
Cases settled through Settlement Commission
Cases before Authority for Advance Rulings (AAR)
Issues governed by domestic law
|
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C
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Technical issues
|
The CA can negotiate and eliminate all or part of the
adjustments provided it does not reduce the returned income
Recurring issues can be resolved as per prior MAP. However,
issues cannot be resolved in advance
Interest and penalty are consequential and hence not part of MAP
Indian CA will make secondary adjustment as per law
MAP cannot be proceeded with where BAPA or Multilateral APA is
filed
Suspension of collection of taxes will be as per Memorandum of
Understanding (MOU) entered into with treaty partner; in its absence, the
domestic law provision will apply
Adjustment of taxes paid by payer according to order under
section 201 of the Act
|
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D
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Implementation
of outcomes
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India is committed to implementing MAP outcomes in all cases
except when an order of ITAT is received for the same year before
implementing MAP outcome. In such a case, India will intimate the treaty
partners and request them to provide correlative relief. In addition,
taxpayers are provided with 30 days to convey their acceptance of the outcome
|
15 Notification No. 23/2020, CBDT dated 6th
May, 2020
16 MAP Guidance/2020, F.No 500/09/2016-APA-I,
dated 7th August, 2020, CBDT, Government of India
5. REFLECTIONS
- Based on the discussions in the earlier paragraphs, on juxtaposing the Indian tax treaties with the MLI provisions of Articles 16 and 17, a substantial number of existing CTAs already contain the provisions recommended by the MLI. Therefore, the ineffectiveness of MAP in the pre-BEPS era (MAP1.0) may be attributed largely to procedural infirmities and hassles.
- Therefore, for MAP 2.0, the need of the hour is to address the existing shortcomings. In this regard, the Indian tax administration’s recent measures to introduce revised rules and the guidance note on MAP are noteworthy and laudable. They reflect India’s approach to resolve treaty-based tax disputes and stick to its commitment to the BEPS inclusive framework. Further, the implementation of reforms based on the FTA-MAP peer review recommendations on BEPS AP 14 also reflect the approach of the Indian tax administration to rectify its defects in the MAP process.
- India’s MAP statistics further support the view that MAP 2.0 is heading in the right direction. One can observe that the timeline for resolving MAP cases has considerably reduced considering that the time taken for MAP resolution was more than five years in the MAP 1.0 era17. Speedy resolution of tax disputes fosters certainty and promotes faith in the system. It is imperative to mention that India’s positive outlook to resolve disputes is also reflected with the OECD conferring India and Japan with the MAP award for effective co-operation to resolve transfer pricing cases18.
MAP caseload as at 2019-end inventory and time
frame of resolving
|
Particulars
|
TP
cases
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Others
|
|
Cases started before 1st January, 2016
|
380
|
96
|
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Cases started after 1st January, 2016
|
410
|
65
|
|
The average time before January, 2016 cases – to resolve MAP
[months]
|
64.86
|
61.97
|
|
Average time after January, 2016 cases – to
resolve MAP [months]
|
18.48
|
19.02
|
- Amidst all the positive changes that the Indian tax authorities have brought in for an effective MAP 2.0, there are still some aspects that require consideration:
- Suspension of collection of taxes – India, in its MAP guidance, has stated that in respect of countries with no MoU, the CBDT Circular governs the suspension of tax collection. However, the Circulars / provisions of stay come with certain riders; for example, u/s 254 the Tribunal does not have the power to grant stay beyond 365 days in certain situations19. Therefore, such impediments could put taxpayers in a difficult situation and could impair the outcome of the MAP. Hence, a more flexible approach to suspending tax collection, pending a mutually agreeable procedure, is desirable.
- Resolution for recurring issues – Currently, the aggrieved taxpayer must apply for MAP resolution every year regarding recurring issues. Hence, the Indian MAP guidance precludes the CA from resolving in advance or prior to an order by the Income-tax authorities on recurring issues. For speedier disposal of recurring issues under MAP, the Government may consider introducing a simplified process. Such a mechanism will assist in reducing the timelines for MAP resolution for recurring issues and foster certainty. Further, in the case of change in the CA in future years, the incumbent CA should maintain consistency and follow the prior years’ MAP position without any deviation.
- ITAT order overrides MAP settlement – The India MAP guidance suggests that the ITAT order will supersede the MAP settlement in cases where the implementation of MAP settlement has not taken place. The rationale behind this is that the ITAT is an independent statutory appellate body and the CA cannot deviate from it. This proposition is against the commitment granted under the treaty. Besides, in practice, most transfer pricing cases are usually remanded back to the field officers setting aside the original assessment. Considering that a faceless regime for ITAT is on the anvil, it is our humble view that India should reconsider this proposition and make suitable legal amendments to give effect to MAP settlements.
CONCLUSION
The existing MAP regime in India can foster tax certainty only by rectifying its flaws and defects. Thanks to the BEPS initiative and the MLI, the MAP framework has indeed got overhauled. The measures adopted by India by aligning towards its global commitment by providing necessary amendments to domestic law, clarifications and resolving disputes in a shorter period signals that the process is heading in the right direction. Measures undertaken through MAP 2.0 for an efficient dispute resolution framework may not be perfect and completely defect-free. Yet, the measures taken are laudable, bringing an element of clarity and certainty for taxpayers. After all, what is coming is better than what is gone!
17 April, 2014 – December, 2020 about 790 cases
overall were resolved under MAP; Source – Ministry of Finance Annual Report,
2020-21
18 https://www.oecd.org/tax/dispute/mutual-agreement-procedure-2019-awards.htm
19 Pepsi Foods Limited [2021] 126 taxmann.com 69
(SC) – The Supreme Court has held that ITAT can grant stay beyond 365 days, if
the delay in disposal of appeal is not attributable to the assessee
