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Taxsutra Database Insight: Interpretation of Applicability of Sec. 50C to transactions covered by Sec. 45(3); Taxpayer’s charter – Custodian of Rights?

  Issue No. 195 / February 26th, 2020

Dear Patrons, 

Profits and gains arising from the transfer of a capital asset by a partner to a firm shall be chargeable as the partner`s income of the previous year in which the transfer took place under sub-section (3) to section 45. Circular 495 dated 22-9-1987 explained the intention of the sub-section inserted by the Finance Act, 1987 and the effect of this amendment. For purposes of computing the capital gains, the value of the asset recorded in the books of the firm on the date of the transfer shall be deemed to be the full value of the consideration received or accrued as a result of the transfer of the capital asset. 

Section 45(3) and Section 50C both are deeming fiction and SC has categorically held that one deeming fiction cannot be extended by importing another deeming fiction. Expl. 2 inserted in Section 50C w.e.f. 1-10-2009 stating that the expression "assessable" by the stamp valuation authority means the price which would have been adopted/assessed had the transaction been referred to such valuation authority for the payment of stamp duty. 

The question that arises is whether sec. 45(3) and sec. 50C operate in different fields or in the same field.

At Taxsutra Database Insight, we have complied 11 rulings on “Interpretation of Applicability of Sec. 50C to transactions covered by Sec. 45(3)” which explain the invocation of deeming in computing capital gains on land introduced into a partnership firm as a capital contribution.

 

Click Here to Read - Taxsutra Database Insight - Interpretation of Applicability of Sec. 50C to transactions covered by Sec. 45(3)

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Post Budget 2020 - Expert Columns

Finance Minister Mrs Nirmala Sitharaman in her Budget 2020 speech has proposed to incorporate taxpayer’s charter in the income tax statute, while emphasizing that, “An important aspect of both ease of living and ease of doing business is fairness and efficiency of tax administration. We wish to enshrine in the statutes a “Taxpayer charter” through this budget. Our government would like to reassure taxpayers that we remain committed to taking measures so that our citizens are free from harassment of any kind.”

 

Authors Subham Kumar and Ankita Baid (Chartered Accountant) in their article analyse Taxpayer’s charter as introduced and Rights adopted internationally. They quote “One of the significant reasons for the foreign investors to invest in India being sceptical about tax regime in India. India is considered as one of the most aggressive tax regimes in the world”.  The authors sign off stating that, “If Taxpayer's charter is adopted in spirit and coupled with an efficient grievance redressal system, will largely ensure that there are no violations of Taxpayer’s rights.”

Read Here Article Titled - Taxpayer’s charter – Custodian of Rights?

Lot's more at Taxsutra Database

Click Here to access all “Taxsutra Database Newsletters”, in case you have missed any!

Read Here - Latest News, CBDT clarification...and more!

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About Taxsutra Database!

Access to a strong repository of Tax Rulings is a key requirement of tax professionals like yourselves.  Taxsutra Database is a brand new addition to the Taxsutra bouquet of services. Largely known for its world class real time news and updates service, Taxsutra brings to you a comprehensive, easy to use Database service which offers the following features:

  • Over 105800+ Income Tax Rulings reported across ITR, CTR, Taxman, DTR, ITD, TTJ, and ITR(Trib) and which also includes recent unreported handpicked ruling 
  • Completely integrated service with all the latest cases powered by an advanced search engine to provide a seamless user experience 
  • Search results supported by active filters around Court Level, Location, Case Numbers and Citation
  • Unique Bulls Eye application to further enhance search by including "Exact words", "Any of these", "none of these"

The Taxsutra Database comes at a very special Annual Subscription price of 3400 + GST AND includes a annual license to the Taxsutra Library.

Click Here to Sign up, make payment and join the Taxsutra Family.  

Copyright © TAXSUTRA. All Rights Reserved

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Taxsutra Database Insight - Part 2: Amnesty Scheme - Effect of pendency of Assessee and Dept. appeal - Disputed Tax & Arrears...and more!

  Issue No. 194 / February 19th, 2020

Dear Patrons,

As Govt. of India aims to settle the unresolved issues with the 'Direct Tax Vivad se Vishwas Bill, 2020' [“The Scheme”], the Union Cabinet approved amendments to “The Scheme” with a view to increase its scope to cover litigations pending in revision, arbitration, DRP cases, etc.

The Finance Minister in her Budget speech while introducing the Scheme announced that, Taxpayers in “whose” case appeals are pending at any level can take the benefit from this scheme. However as per the Bill No. 29 of 2020 [“Vivad se Vishwas Bill, 2020”], introduced in LOK SABHA, in definition section 2(1)(a), the term used is "appellant" [which includes ‘The person or the income-tax authority or both’] while Sec. 2(1)(c) its "declarant" means a person who files declaration u/s 4. 

At Taxsutra Database Insight Part 2, we bring to you rulings on certain key principles which examine whether “the scheme” applies to appeals by both the “Assessee” and the “Departmental”, effect of pendency of Departmental Appeal, power of AO to reopen assessment once tax arrears determined “the Scheme”, whether delay in payment of tax can be condoned or Amount Paid under Protest can be considered?

Read Here - Taxsutra Database Insight - Part 2: Amnesty Scheme - Effect of pendency of Assessee and Departmental appeal - Disputed tax and Tax arrears

Read Here - Taxsutra Database Insight - Part-1: Amnesty Scheme - Interpretation of the word "Admitted and Pending"

Click Here to Sign up and join the Taxsutra Family.   

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Post Budget 2020 - Expert Columns

Finance Bill, 2020 has proposed a major concession and in order to bring uniformity between the co-operative societies and corporates, Finance Minister Nirmala Sitharaman proposed reduction of tax on Co-operative societies to 22 per cent plus surcharge and cess with no exemptions / deductions, from 30 per cent at present. Further to enlarge the scope of the section 194A(3)(v) , Finance Bill 2020 proposes co-operative societies are liable to deduct tax.

Author, CA Ashok Mudnur analyses the implications of Section 115BAD and infers that post Budget 2020, if a resident Co-operative bank opts to pay Tax under the new regime, it  will save 9.77% on income tax. The Author cautions Co-operative Societies that exemption u/s 80P may be denied to those who have violated provisions of State Co-operative laws, hence it would be wise to choose new tax regime 115BAD. Presently, interest credited or paid by a co-operative society to a member or to any other co-operative society is not liable for tax deduction at source in view of section 194A(3)(v). The Author examines the impact of the proposed amendment in Sec. 194A(3)(v) w.e.f 01.04.2020, and points out that now Big Co-operative societies, having gross receipts exceeds Rs. 50 crore during the last financial year, would be required to deduct tax from interest credited or paid if the amount of interest is more than Rs. 50,000 in case of payee being a senior citizen and Rs. 40,000 in any other case;

Read Here article titled - A New Tax Regime for Co-operative Societies- Big Thumb-up!

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Finance Bill, 2020 proposed to amend Section 43CA, 50C and 56 of the IT Act to increase in the safe harbour limit from 105% to 110%. It becomes an utmost aspect of concern that many times, there is a significant variation in the value of the properties within same locality considering which, the Courts, have in many occasions held that if the margin between the value as given by the assessee and the Departmental valuer is less than 10%, then this difference is liable to be ignored, has some merit.

Author Dharan V Gandhi, Advocate in his opening remarks quotes "Everything is fair in love and war" is now modified to "everything is fair in love, war and tax evasion".  The Author examines various Judicial precedents and welcomes Finance Bill 2020,  however cautions that they were late to recognise this concept itself, the limit itself was set at a meagre figure of 5%; The Author stating that u/s  50C & 56(2)(x) the FMV has to be determined on the basis of one ad-hoc method which is prescribed in Rule 11UA of the Income-tax Rules, 1962, concludes that “Such method is an absurd and vague one and there is no safe harbour provision in such cases, which is the need of the hour, considering the fact that great damage is caused otherwise.”

Read Here article titled - Increase in safe harbour limits on property valuations, a welcome move!

Lot's more at Taxsutra Database

Click Here to access all “Taxsutra Database Newsletters”, in case you have missed any!

Read Here - Latest News, CBDT clarification...and more!

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About Taxsutra Database!

Access to a strong repository of Tax Rulings is a key requirement of tax professionals like yourselves.  Taxsutra Database is a brand new addition to the Taxsutra bouquet of services. Largely known for its world class real time news and updates service, Taxsutra brings to you a comprehensive, easy to use Database service which offers the following features:

  • Over 105800+ Income Tax Rulings reported across ITR, CTR, Taxman, DTR, ITD, TTJ, and ITR(Trib) and which also includes recent unreported handpicked ruling with VECS summary
  • Completely integrated service with all the latest cases powered by an advanced search engine to provide a seamless user experience 
  • Search results supported by active filters around Court Level, Location, Case Numbers and Citation
  • Unique Bulls Eye application to further enhance search by including "Exact words", "Any of these", "none of these"

The Taxsutra Database comes at a very special Annual Subscription price of 3400 + GST AND includes a annual license to the Taxsutra Library.

Click Here to Sign up, make payment and join the Taxsutra Family.  

Copyright © TAXSUTRA. All Rights Reserved

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Taxsutra Database Insight Part - 1: Amnesty Scheme - Interpretation of the word "Admitted and Pending"; Budget 2020 - Proposals Relating To Charity Institutions

  Issue No. 193 / February 12th, 2020

Dear Patrons,

The Govt. of India has been offering amnesty schemes practically every ten years to put an end to litigation in various forms and at various stages under Direct & Indirect Tax  and the Schemes have been described as the “very last opportunity”. The constitutional validity of VDIS, 1997 was challenged at SC in the case of AIFTP vs UOI [TS-5092-SC-1997-O] and SC upheld the constitutional validity of the amnesty scheme rejecting the contention that more benefits are given to tax-evaders, the provisions of the scheme are arbitrary and violative of Art. 14 of the Constitution of India.

In the line of SVLDRs, Finance Minister, in her recent budget speech, introduced the scheme “The Direct Tax Vivad Se Vishwas Bill, 2020” (“the Bill”) (subsequently introduced in the “Lok Sabha”) to provide for resolution for the pending “direct tax disputes” and proposed waiver of interest & penalty provided the disputed tax amount is paid by March, 2020. The Scheme is to remain open upto June 2020. As per “the Bill”, any Taxpayer whose appeal is pending as on 31st January 2020 before any appellate forum [i.e., SC, HC, ITAT and CIT(A)] is eligible to avail the Scheme.

At Taxsutra Database Insight Part-1, we bring to you key rulings on principles which examine and interpret the words "Admitted and Pending" in the context of an appeal before an appellate forum. In Parts 2 & 3 at Taxsutra Database Insight we will focus on other issues  pertaining to Amnesty scheme similar to 1) Delayed appeal 2) Eligible legal entities 3) Appeal against fee u/s 234E ...etc and more!

Read Here Taxsutra Database Insight Part-1: Amnesty Scheme - Interpretation of the word "Admitted and Pending" 

Click here to sign up and join the Taxsutra Family!  

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Post Budget 2020 - Expert Columns

The Finance Bill, 2020 proposes to make a plethora of procedural changes in the matter of granting exemption to Charitable Institutions from income tax and continuance thereof. Author Dindayal Dhandaria, Chartered Accountant, examines the nuances of the proposals and their impact on the charity institutions.

The author contemplates that the electronic process of registration and the automatic grant of URN will remove hardships caused due to loss of registration certificate and/or number. The author discusses the proposal to fix the duration of registration for 5 years and subject to examination by the authorities after every 5 years, without a provision for condonation for delay in applying for renewal of registration, and opines it as a cumbersome one, keeping the assessees on toes. Further, speaking of provisional registrations, the author ponders on what would happen in the eventuality of no commencement of activities of the Trust for a long period in absence of provision for renewal of the Provisional Registration. The author also points out at lack of clarity on how the income of the provisionally registered charity institution between the periods from its formation till rejection of its application would be taxed or dealt with if its application is not approved.

Read here article titled - Proposals Relating to Charity Institutions in Finance Bill, 2020 -"Vishwas To Vivad"!

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The Direct Tax Vivad Se Vishwas Bill, 2020 [“Bill”] was introduced in Lok Sabha on Dec 5th 2020 to reduce pending litigation related to Direct Taxes. The Bill will be enacted as law once it is approved by both houses of the Indian Parliament.

Author V P GUPTA , Advocate examines the proposals introduced in Bill to settle long pending appeals before all forums [SC, HC, ITAT & CIT(A)] and seeks clarification to avoid any risk of Tax Calculation in terms of Section 3. The author opines that the scheme should provide for adjustment in the amount of loss to be carried forward to avoid double payment of tax.  He further opines that the periods mentioned in Section 5 of the scheme are not linked with the dates for payment mentioned in section 3 of the Bill i.e. 31.03.2020 or thereafter and states that this position needs to be clarified and dates have to be co-related.

Read here article titled – “Vivad Se Vishwas Scheme” - Broad Features and Clarifications required

Lot's more at Taxsutra Database

Click here to access all “Taxsutra Database Newsletters”, in case you have missed any!

Read here - Latest News, CBDT clarification...and more!

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About Taxsutra Database!

Access to a strong repository of Tax Rulings is a key requirement of tax professionals like yourselves.  Taxsutra Database is a brand new addition to the Taxsutra bouquet of services. Largely known for its world class real time news and updates service, Taxsutra brings to you a comprehensive, easy to use Database service which offers the following features:

  • Over 105500+ Income Tax Rulings reported across ITR, CTR, Taxman, DTR, ITD, TTJ, and ITR(Trib) and which also includes recent unreported handpicked ruling with VECS summary
  • Completely integrated service with all the latest cases powered by an advanced search engine to provide a seamless user experience 
  • Search results supported by active filters around Court Level, Location, Case Numbers and Citation
  • Unique Bulls Eye application to further enhance search by including "Exact words", "Any of these", "none of these"

The Taxsutra Database comes at a very special Annual Subscription price of 3400 + GST AND includes a annual license to the Taxsutra Library.

Click here to sign up, make payment and join the Taxsutra Family.  

Copyright © TAXSUTRA. All Rights Reserved

View More
Taxsutra Database Post Budget 2020: Taxing non-residents on citizenship criteria; DDT abolished & Proposed amendment u/s 194J...and more!

  Issue No. 192 / February 05th, 2020

Dear Patrons,

The Union Budget 2020, presented by Hon’ble Finance Minister Nirmala Sitharaman on 1st Feb, 2020 has announced a new regime for individual taxpayers to make a choice between the old and new regimes with an objective that the taxpayers would be able to file their Income tax returns themselves;  Amongst the various proposals contained in the Union Budget 2020-21 in the form of Finance Bill, 2020, at Taxsutra database Budget special, we bring to you Snapshot of 11 important proposed amendments and articles by three authors discussing the important proposals of the Budget.

Read here - Snapshot of Direct Tax Proposals in Budget 2020

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Post Budget 2020 - Expert Columns

Finance BILL, 2020 proposes to amend the tax residency of non-residents by inserting sub-section (1A) to Section 6 to deem an Indian Citizen to be resident in India, if such an individual is not liable to tax in any other country or territory by reason of his residence or domicile or any other criteria of similar nature.

Author CA Shyam Nori discusses the proposed anti-abuse measure by looking at: what the  expression ‘Liable to tax’ means, stateless person, conflict between Finance Bill and  memorandum, and in the context of treaty.  The author elucidates that “Liable to tax doesn’t  necessarily mean subject to tax”. In this context a reference is made to SC decision in Azadi  Bachao Andolan which clarified that 'liable to tax' connotes that a person is subject to one  of the taxes mentioned in Article 2 in a Contracting State and it is immaterial whether the  person actually pays the tax or not”. The author further highlights that the amended section does not meet the intention of the amendment as stated in the memorandum i.e., anti-abuse measure to address statelessness as a person cannot be said to be not liable to tax, if the person were to be resident of a country and the income earned may not be subject to tax, but the person is liable to tax. Speaking of the CBDT clarification on the amendment stating that in case of an Indian citizen who becomes deemed resident of India under this proposed provision, income earned outside India, shall not be taxed in India unless it is derived from an Indian business or profession, the author opines that “This would put to rest any concerns the Indian citizens, who are tax residents elsewhere but not liable to tax, may have about getting taxed in India. This would equally be the case with non-treaty countries.”

Read here the article titled - Taxing non-residents on citizenship criteria

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The Union Budget 2020 has proposed, of what can be termed as a sigh of relief especially to the India inbound investors community and is likely to attract foreign investments. Finance Minister Mrs. Nirmala Seetharaman has proposed to make the provisions of section 115-O redundant and inoperative, in a move to tax the shareholders in the conventional manner and has further, proposed to introduce a new section 80M, to avoid any cascading effect, in the case of distribution of dividends through multiple layers of holding companies before reaching the ultimate shareholders.

 Authors Deepak Manoharan and Nathansha Dilip, (Chartered Accountants) evaluate the impact of the proposed amendments. In the context of its impact on foreign investors in light of higher tax rates in India, the authors opine that “...foreign companies can now pay taxes on dividend at this reduced rate and claim the credit of the same in the country of residence.”.  Speaking of the reduction of tax cost that the amendment brings about to companies, the authors state that “This also diminishes the upper hand an LLP structure had over a company.”. Going by the sign of impetus that the Government is providing towards inclusive growth, they sign off with an anticipation that “It may not be surprising if the Government does away with the provisions of buyback tax as well, which was introduced as a measure to counter the alternate repatriation strategy adopted to avert DDT” 

Read here the article titled: DDT abolished – The boon of the decade for India inbound investors!

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In its endeavor to reduce tax litigation, Government in the Budget 2020 has taken quite a few steps. One such step which is likely to be very effective is the proposal to reduce the rate of TDS u/s. 194J in cases of fees for technical services (other than professional services) from 10% to 2% to bring it on par with rates as provided u/s. 194C for any work pursuant to a contract.

Authors Dindayal Dhandaria & CA Naveen Kumar Dhandaria (Chartered Accountants), while discussing the proposal state that “It is heartening to note that the Finance Bill, 2020 proposes to amend the existing provisions of section 194J of Income tax Act, 1961 (“the Act”) with a view to reducing litigation and to provide certainty in tax matters”. The authors highlight and discuss certain cases where this dispute has arisen. The authors sign of with a suggestion that similar to the different rates provided u/s. 194C based on the payees’ status (i.e., individual/HUFs & Others), “It is desirable that in section 194J also, different rates for deduction of tax at source from ‘fee or technical services” should be prescribed depending upon the payees concerned as is provided in section 194C.”

Read here the article titled - Proposed amendment u/s 194J would reduce litigation and not eliminate it?

Lot's more at Taxsutra Database

Click here to access all “Taxsutra Database Newsletters”, in case you have missed any!

Read here - Latest News, CBDT clarification...and more!

Read here - Speech of Nirmala Sitharaman, Minister of Finance with “Annex B in Direct tax”

Read here - Memorandum to Finance Bill, 2020

Read here - THE FINANCE BILL, 2020

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About Taxsutra Database!

Access to a strong repository of Tax Rulings is a key requirement of tax professionals like yourselves.  Taxsutra Database is a brand new addition to the Taxsutra bouquet of services. Largely known for its world class real time news and updates service, Taxsutra brings to you a comprehensive, easy to use Database service which offers the following features:

  • Over 105500+ Income Tax Rulings reported across ITR, CTR, Taxman, DTR, ITD, TTJ, and ITR(Trib) and which also includes recent unreported handpicked ruling with VECS summary
  • Completely integrated service with all the latest cases powered by an advanced search engine to provide a seamless user experience 
  • Search results supported by active filters around Court Level, Location, Case Numbers and Citation
  • Unique Bulls Eye application to further enhance search by including "Exact words", "Any of these", "none of these"

The Taxsutra Database comes at a very special Annual Subscription price of 3400 + GST AND includes a annual license to the Taxsutra Library.

Click here to sign up, make payment and join the Taxsutra Family.  

Copyright © TAXSUTRA. All Rights Reserved

View More
Taxsutra Database Insight: Royalty / FTS - Supply of designs & drawings; Budget expectation- Controversy over delayed contribution towards PF / ESI

  Issue No. 191 / January 29th, 2020

Dear Patrons,

The ’make available‘ clause in respect of Fees for Included Services (FIS)/ Fees for Technical Services (FTS) is more or less similarly defined under the Income Tax Act and under several DTAAs. We have various HC, AAR and ITAT rulings that have held that an amount paid for technical services would be considered as FTS only if the services paid for ‘made available’ the technical knowledge, experience, skill, know-how or processes. In 2017, the Gujarat HC order reported in [TS-6865-HC-2017(Gujarat)-O] admitted an appeal filed by the Revenue against the ITAT’s order, holding that payment made to a non-resident company did not fall within the definition of Fees for Technical Services in view of the ’make available‘ clause in the concerned treaty, although the AO had given a categorical finding that ‘make available’ clause is not necessary for treating a payment as Fees for Included Services under the DTAA, as there is development & transfer of a technical plan or technical design to the assessee by the Canadian party.

In the “Taxsutra Database Insight” Issue No. 191, we have compiled 30 rulings on issues arising specifically on the question whether payments towards supply of designs & drawings are “Royalty” u/s 9(1)(vi)” or FTS/ FIS. Some of these cases have also examined whether the foreign entity had a PE in India.

Read here: Taxsutra Database Insight - “Make available” – Payment towards supply of designs & drawings whether Royalty u/s 9(1)(vi)?

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Expert Column:

There is a fervent debate regarding disallowance of employees’ contribution of provident fund post the “due date” and inclusion of such contribution as income of the employer owing to conflicting judgments of various high courts and the CBDT Circular No. 22/2015, dated 17-12-2015. Authors CA T G Suresh (Partner, Suresh & Balaji) and Arjun Suresh

 In their article discuss the attempt made to justify the reasons for making an amendment in the upcoming budget to put an end to this controversy. Pondering on the different treatments given by the Government to contributions made by employer and employee, authors state that They are constructively two parts of the same payment and ...there is no concrete rationale to separate the two and make it operate as two different transactions.” The Authors further discuss the impact of the CBDT Circular which sought to withdraw all litigation made with regards to Section 43B but however made a specific statement that this shall not affect any claim or litigation with respect to Section 36(1)(va). The authors opine that if this circular is not intended to be applicable to the employee’s contribution , one cannot understand the logical reason behind its issuance after nearly 6 years of SC decision which had held that that the omission of the Second proviso of Sec. 43B as curative in nature and hence would operate retrospectively. The authors sign off with a remark that Considering the keenness of the Government to reduce the litigation and improve the ease of doing business , let’s hope that the upcoming budget  makes a deserving amendment in either in Sec 36(1) (va) or sec 43 B so that this controversy can be finally put to rest.” 

Read here the article titled – Budget expectation on controversy over delayed deposits of employees' contribution of PF / ESI

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About Taxsutra Database!

Access to a strong repository of Tax Rulings is a key requirement of tax professionals like yourselves.  Taxsutra Database is a brand new addition to the Taxsutra bouquet of services. Largely known for its world class real time news and updates service, Taxsutra brings to you a comprehensive, easy to use Database service which offers the following features:

  • Over 105500+ Income Tax Rulings reported across ITR, CTR, Taxman, DTR, ITD, TTJ, and ITR(Trib) and which also includes recent unreported handpicked ruling with VECS summary
  • Completely integrated service with all the latest cases powered by an advanced search engine to provide a seamless user experience 
  • Search results supported by active filters around Court Level, Location, Case Numbers and Citation
  • Unique Bulls Eye application to further enhance search by including "Exact words", "Any of these", "none of these"

The Taxsutra Database comes at a very special Annual Subscription price of 3400 + GST AND includes a annual license to the Taxsutra Library.

Click here to sign up, make payment and join the Taxsutra Family.  

Copyright © TAXSUTRA. All Rights Reserved

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