Income Tax Bill 2025: ‘Notwithstanding’ Vs. ‘Irrespective Of’
As far as GAAR provisions (Chapter XI ) in the Income Tax Bill 2025, it seems that mainly the changes are in the arrangements of the proposed section and one typographical error in Section 183 wherein the words, or something similar to the words, “shall apply” before 183(a) and “shall be applied” before 183(b) seem to be missing.
Of course, the application of GAAR provisions “subject to such conditions” and ” as per such guidelines”, as may be prescribed, may be judicially perceived as relegating the parliament-made law to a secondary position, and it may not stand judicial scrutiny unless these provisions are used with utmost care and caution in actual practice, but then that is a legacy issue.
The other interesting part is the implication of the expression “notwithstanding” being substituted by “irrespective of”.
In common parlance, both expressions have broadly similar meanings, but there is no jurisprudence on the expression “irrespective of” whereas there are many judicial precedents on the connotations of the expression “notwithstanding”.
One possible approach to the expression “irrespective of” may mean “without consideration for” and “regardless of” which is much broader than the exception rule implicit in the expression “notwithstanding” which means “inspite of” or “despite” signifying something holding the field despite potential obstacles or contrary provisions.
In practical terms, therefore, when a statutory provision starts with the words “irrespective of anything contained in the Act”, it may mean that to interpret this statutory provision, every other provision can be simply disregarded. In sharp contrast to this approach, the expression “notwithstanding” implies that the related provision will have “an overriding effect in case of ( and only in case of) a conflict” and that “the non-obstante clause need not necessarily and always be co-extensive with the operative part so as to have the effect of cutting down the clear terms of enactment and if the words of the enactment are clear and are capable of a clear interpretation on a plain and grammatical construction of the words the non-obstante clause cannot cut down the construction and restrict the scope of its operation” [ see R S Raghunath Vs State of Karnataka & Ors [(1992) 1 SCC 335 (SC)].
There is, however, a silver lining.
While the use of the expression “irrespective of”, in the place of “notwithstanding” may certainly help the position taken by the tax administration in the long run, its short-term and immediate casualty will be on account of kill effect of such paradigm shifts. It will now be much easier to demonstrate the difference between “notwithstanding” and “irrespective of” and to convince the judicial forums about narrower connotations of the expression “notwithstanding” with respect to the existing tax disputes.
The copy of the order is as under:
