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AUGUST 08, 2021 02:30 ISTUPDATED: AUGUST 08, 2021 13:45 IST

K. Bharat Kumar

Have legal cases forced the Centre’s hand? Will global investors be satis�ed withthe changes?

The story so far: On Thursday, Finance Minister Nirmala Sitharaman introduced theTaxation Laws (Amendment) Bill in the Lok Sabha to nullify the tax clause provision thatallows the government to levy taxes retrospectively. The government has been fightinglegal cases against Vodafone and Cairn Energy on taxes it has claimed retrospectively ontransactions these entities entered into relating to operations in the country. Both the U.K.-based companies have won international arbitration rulings that held the Indiangovernment in breach of bilateral investment protection agreements with the Netherlandsand the U.K. respectively.

What is the genesis of the retrospective tax imbroglio?In May 2007, Vodafone bought Hong Kong-based Hutchison Whampoa’s controlling stakein Hutchison Essar for $10.9 billion. The transaction took place in the Cayman Islandswhere Hutchison’s HTIL unit owned 100% of CGP Investments (the actual stakeholder inHutchison Essar), which in turn was acquired by Vodafone’s Netherlands-based VodafoneInternational Holdings. That September, India’s Income Tax Department served a notice onVodafone for failing to deduct tax at source from the amount it paid to Hutchison in lieu ofthe capital gains tax it contended the seller Hutchison was liable for. The case went to court.

Explained | Why is retrospective tax being scrapped?

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8/9/2021 Explained | Why is retrospective tax being scrapped? - The Hindu

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In January 2012, India’s Supreme Court backed Vodafone, ruling that indirect transfer ofshares to a non-Indian company would not attract tax in India. Separately, in 2006-07,Cairn Energy U.K. had reorganised its Indian oil and gas exploration business ahead of aplanned IPO in India and subsequently sold part of its stake in Cairn India Ltd., first toMalaysia’s Petronas, and then the Vedanta Group during the 2009-11 period.

Editorial | Rewind to fast forward: On retrospective tax

In the Union Budget of 2012, the then Finance Minister, Pranab Mukherjee, introduced anamendment to the Finance Act, which allowed the government to retrospectively tax suchtransactions. In 2014, the Income Tax Department froze Cairn’s remaining shares in CairnIndia. The next year, Cairn initiated international arbitration against the governmentunder the India-U.K. bilateral investment treaty. In 2018, the Income Tax Department alsotook over the U.K. firm’s 5% stake in Vedanta. These shares were later sold, while taxrefunds amounting to $223 million were withheld in another transaction. It also seizeddividends worth $159 million due to Cairn Energy U.K.

What are the proposed changes?The Bill proposes to do away with retrospective taxation on the sale of assets in India byforeign entities executed before May 2012, with a caveat — the companies that will benefitfrom the amendment must withdraw all legal cases against the government and forfeitinterest, costs and any damages. The government, on its part, is willing to refund any taxdues it may have collected or seized. At ₹7,900 crore, the amount transferable to CairnEnergy takes up the bulk of the total ₹8,100 crore of such proposed refunds.

Why did the government decide to rescind the provision?Though the government had raised tax demands in 17 such cases, Vodafone and Cairnattracted the most attention. Both initiated international arbitration under bilateralagreements. Vodafone got a favourable ruling in September 2020 at the Permanent Court ofArbitration at The Hague in the ₹22,000-crore case. In December, an Arbitral Tribunal ruledin favour of Cairn, awarding it $1.2 billion plus interest and costs in damages, which cameto $1.7 billion in total. India has appealed against both rulings. This year, Cairn had appliedin courts in the U.S., Canada, Singapore, Mauritius and the Netherlands for seizure ofIndian assets such as the state-owned national carrier Air India's aircraft. It also obtained alegal order in France freezing some real estate assets owned by India in Paris, valued atabout $24 million. Though the cases are in appeal, the loss of the arbitration cases andCairn’s pursuit of India’s assets abroad may have forced the government’s hand. The Billsays: “It is argued that such retrospective amendments militate against the principle of taxcertainty and damage India’s reputation as an attractive destination... The country todaystands at a juncture when quick recovery of the economy after the COVID-19 pandemic isthe need of the hour and foreign investment has an important role to play...”

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How are global investors likely to react?Even after the Bill becomes law, entities such as Cairn Energy mustconvince its shareholders and accept the caveats. Prospectiveinvestors, however, may take heart from the fact that the governmenthas shown the intent not to claim tax retrospectively anddemonstrated a willingness to undo a measure that was seen ashurting the inflow of foreign investment.

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