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Shearn Delamore & Co.

Anand Raj

Anand Raj

Partner

Expertise

  • Competition Law & Antitrust
  • Tax & Revenue

WSG Practice Industries

Activity

WSG Leadership

Antitrust Group
Member
Profile
Anand (partner of Shearn Delamore & Co. since 2003) was admitted as an Advocate & Solicitor of the High Court of Malaya in 1996. Anand's practice areas include all aspects of tax and transfer pricing disputes and litigation as well as competition law & antitrust. Anand is the Co-Head of the firm's Antitrust Practice.

Anand was recognized as the 2017 Asia Tax Disputes and Litigation Practice Leader of the Year by the International Tax Review (ITR). Asialaw Leading Lawyers (2020 - 2021) recognized Anand as an "Elite Practitioner" in Competition/Antitrust as well as Tax. Anand is recognized as a "Highly Regarded Practitioner" in Indirect Tax and Tax Controversy 2019 - 2021 by the ITR. Anand is ranked by Legal 500 Asia-Pacific (2019 - 2020) as a "Leading Individual" in Tax. Asia Business Law Journal (2020) recognized Anand as one of Malaysia's Top 100 Lawyers in Competition Law & Antitrust and Tax Disputes & Controversy. Anand is recognized as a "Global Leader" (2019 - 2020) in Competition as well as Corporate Tax Lawyers by Who's Who Legal.

Anand has acted in numerous leading tax cases, including for the Malaysian Bar, United Plantations Berhad, Castrol (Aspac Lubricants), MUI, ExxonMobil, Multi-Purpose Holdings Berhad, Seabanc Kredit, Paramount (M) (1963) Sdn Bhd, Bandar Utama City Corporation, SGS Singapore, Wincor Nixdorf, Petronas Penapisan, AIACL, SUEP Properties Berhad, Repsol, Flextronics Shah Alam Sdn Bhd, Seaport Worldwide Sdn Bhd, Shell Refining, United Malacca Berhad, Kompleks Tanjung Malim Sdn Bhd and many others.

Anand has also been recognized in the International Who's Who Legal: Competition Lawyers for 2013 - 2020 and as a Tier 1 leader in his fields by the Global Competition Review (GCR), Chambers Asia-Pacific, Asia-Pacific Legal 500, Asialaw Profiles and other directories. Anand regularly represents and advises MNCs, GLCs, foreign and Malaysian enterprises on Competition Law in industries as diverse as financial services, telecommunications and multimedia, pharmaceuticals, insurance, logistics, hospitality, FMCG, manufacturing and the automotive sector, amongst others. Anand regularly conducts trainings and workshops for clients and is active in providing feedback to the relevant authorities and agencies.
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Bar Admissions

► Malaysia (1996)

Education

► LL.B (Hons), University of London
► Certificate in Legal Practice
► Advocate & Solicitor, High Court of Malaya
Areas of Practice

Competition Law & Antitrust | Tax & Revenue

Professional Career

Significant Accomplishments

► International Tax Review (2017); Asia Tax Litigation and Disputes Practice Leader of the Year
► International Tax Review (2013 - 2017); Tax Controversy Leader
► Asialaw Leading Lawyers (2015 - 2018); a Leading Lawyer in Competition & Antitrust
► Asialaw Leading Lawyers (recognized from 2001 - 2018); including as a Leading Lawyer in Taxation in 2014, 2015, 2016, 2017 and 2018.
► Asialaw Leading Lawyers (2017); a Market Leading Lawyer in Tax
► Asialaw Profiles (recognized from 2007 - 2016); including as an Asialaw Recommended Individual in Tax in 2011, 2013, 2014, 2015 and 2016.
► Chambers Asia Pacific (recognized from 2009 - 2018); including as one of the Leaders in their Field in Tax
► Chambers Asia Pacific (2015 - 2018); one of the Leaders in their Field in Competition / Antitrust
► The Legal 500 Asia Pacific (recognized from 2005 - 2018); including as a Recommended Lawyer in Tax in 2010, 2011, 2012, 2014, 2016,2017 and 2018.
► "Expert" for Competition in Who's Who Legal (2013 - 2019)
► "Expert" for Corporate Tax in Who's Who Legal (2016 and 2019)
► Numerous other recognition since 2003

Professional Associations

► Member, Malaysian Bar
► Inaugural Chair, LAWASIA Antitrust Committee
► International Member, American Bar Association's Antitrust Section (ABA)
► Former Chair, International Fiscal Association (IFA) Malaysian Branch
► Chair, Tax Sub-Committee of the Malaysian Bar Council
► Member, Competition Law Sub-Committee of the Malaysian Bar Council
► Member, International Bar Association (IBA)
► Member, Inter-Pacific Bar Association (IPBA)
► Co-chair, IPBA Competition Law Committee
► Former Chairperson, American Malaysian Chamber of Commerce (AMCHAM)'s Tax Committee
► Rapporteur for Malaysia, International Bar Association (IBA) Antitrust Committee
► Member, IFA Asia-Pacific Regional Committee


Professional Activities and Experience

► TAX DISPUTES

● Bar Malaysia v Ketua Pengarah Hasil Dalam Negeri [2018] 4 CLJ 635

▬ Anand Raj acted for the Malaysian Bar in legal proceedings against the Revenue to determine the extent of the Revenue's powers to purportedly undertake tax audits on the clients' accounts of law firms and whether legal professional privilege (or also known as attorney or solicitor-client privilege) would prevent the Revenue from so doing. Bar Malaysia sought for declarations that the exercise by the Revenue was abusive, unlawful and illegal. The High Court decided in favour of the Malaysian Bar, holding that privilege is absolute unless it is waived by the privilege holder or falls within the proviso to section 126 of the Evidence Act 1950 and would require an advocate and solicitor to reject any request or demand of the Revenue for access to, or disclosure of, any, client communications. The High Court held that the Director General of Inland Revenue ("DGIR") cannot be allowed to use the Income Tax Act 1967 ("ITA") as an instrument of fraud purportedly to fish for information on the clients of the law firms. This is a landmark case affecting legal professional privilege in Malaysia.

● Aspac Lubricants (M) Sdn Bhd (formerly known as Castrol (M) Sdn Bhd) v. Ketua Pengarah Hasil Dalam Negeri [2007] 6 MLJ 65

▬ Anand Raj acted for the taxpayer in Castrol (Malaysia) Sdn Bhd (now known as Aspac Lubricants (Malaysia) Sdn Bhd) in a successful tax appeal against the Director General of Inland Revenue before the Malaysian Court of Appeal. This was a landmark case which dealt with the broad principle of tax deductibility of promotional expenditure on product sales. Castrol succeeded in its tax appeal and the Court of Appeal clarified the law by adopting a more pragmatic test in differentiating between business expenditure on sales promotions (which is tax deductible) and expenditure on entertainment (which is not tax deductible or is only partially deductible). There are significant implications to this decision as sales promotion expenses are important annually recurring expenses for virtually all Malaysian businesses. This case is now reported at [2007] 6 MLJ 65, [2007] 5 CLJ 353, [2007] MSTC 4,271.

● Wincor Nixdorf - successful judicial review proceedings to challenge decision of the minister of finance and director general of customs

▬ Anand Raj acted for Wincor Nixdorf (M) Sdn Bhd ("Wincor Nixdorf") in successful judicial review proceedings before the High Court following the refusal of the Minister of Finance ("MOF") and Director General of Customs ("DGC") to grant the company a remission of import duties and sales tax under Section 14A of the Customs Act 1967 and Section 33 of the Sales Tax Act 1972. The High Court decided in favour of Wincor Nixdorf and quashed the decision of MOF. The Court also granted full remission of the import duties and sales tax sought by the taxpayer. The MOF and DGC appealed to the Court of Appeal. In Q1 of 2014, Anand Raj succeeded before the Court of Appeal as the Court affirmed the decision of the High Court quashing the decision of the MOF and remitted the case to the MOF for assessment on the quantum of the remission. Wincor Nixdorf then applied for leave to appeal to the Federal Court (apex court) against the decision of the Court of Appeal in remitting the case to the MOF for assessment on the quantum of the remission. Leave to appeal was granted by the Federal Court in Q4 of 2016. The case was settled on terms favourable to the taxpayer. This is a landmark case being the first Malaysian case on remission of import duties and sales tax and one of very few Commonwealth decisions on the issue of remission.

● Successful resolution of tax appeal involving landmark withholding tax principles on provision of services by non-residents

▬ Anand Raj acted as co-Counsel for Esso Production Malaysia Inc. (now known as ExxonMobil Exploration and Production Malaysia Inc.) and Esso Malaysia Berhad in an appeal before the Court of Appeal. The issues dealt with landmark withholding tax principles with ramifications upon all Malaysian and non-resident taxpayers in the provision of services by non-residents. Anand Raj successfully resolved and concluded the tax appeal before the Court of Appeal favourably for the taxpayer.

● Ketua Pengarah Hasil Dalam Negeri v Shell Refining Co (FOM) Bhd [2014] 9 MLJ 686

▬ Anand Raj acted for Shell Refining Company (Federation of Malaya) Berhad in this tax appeal. The Special Commissioners of Income Tax ("SCIT") decided in favour of Shell and allowed Shell's claim for deduction of certain expenses incurred by the Company on services and advice in respect of a feasibility study and held that the expenses were deductible under Section 33(1) of the Income Tax Act 1967 ("ITA") and all penalties imposed by the Revenue under Section 113(2) of the ITA were discharged in full as the SCIT held that the penalties were imposed mechanically. The Revenue appealed to the High Court. Anand Raj succeeded before the High Court as the High Court dismissed the Revenue’s appeal and affirmed the decision of the SCIT. The Revenue appealed to the Court of Appeal. The Revenue subsequently withdrew its appeal by filing a Notice of Discontinuance. This is a landmark case on the deductibility of expenses incurred on feasibility studies.

Articles

Shearn Delamore & Co Legal Updates June (1)
Shearn Delamore & Co., June 2021

Financial ServicesBNM issues Corporate Strategic Plan policy document for DFIsOn 27 May 2021, Bank Negara Malaysia (“BNM”) issued the Corporate Strategic Plan (“CSP”) policy document, applicable to all development financial institutions (“DFIs”) prescribed under the Development Financial Institutions Act 2002...

Shearn Delamore & Co Legal Updates May 2021
Shearn Delamore & Co., May 2021

Financial ServicesBank Negara Malaysia seeks feedback on Alternative Reference Rate and Strategic Direction on KLIBOR and KLIRROn 19 May 2021, Bank Negara Malaysia invited written feedback by 18 June 2021 on its Alternative Reference Rate and Strategic Direction on the Kuala Lumpur Interbank Offered Rate (“KLIBOR”) and the Kuala Lumpur Islamic Reference Rate (“KLIRR”) for the Malaysian Financial Markets discussion paper...

Shearn Delamore & Co Legal Updates May 2021
Shearn Delamore & Co., May 2021

Financial ServicesGuidance document on Climate Change and Principle-based TaxonomyOn 30 April 2021, Bank Negara Malaysia issued a finalised guidance document for financial institutions to assess and classify economic activities which contribute to climate change mitigation and adaption...

Additional Articles

Articles & Publications:

► Tax Nasional published by the Malaysian Institute of Taxation
► Akauntan Nasional (now known as Accountants Today) published by the Malaysian Institute of Accountants
► The Asia-Pacific Tax Bulletin published by the International Bureau of Fiscal Documentation in Amsterdam


WSG's members are independent firms and are not affiliated in the joint practice of professional services. Each member exercises its own individual judgments on all client matters.

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