This article is written by S A Rishikesh and further updated by Gargi Lad. This article provides an insight into the infamous case of Vodafone International BV v. Govt. of India also known as ‘ the retrospective taxation case.’ It presents an overview of the background of the case with rulings of the High Court up till the Permanent Court of Arbitration. The article emphasises on the analysis of the idea of retrospective taxation and sheds light on how the case affected the development of taxation laws in India with respect to the indirect transfer of shares.
The issue paved its way back into 2007, when the deal between Vodafone and Hutchison Telecommunications International Limited (HTIL) raised questions in India, based on the notion that Hutchison Essar’s non resident parent company was liable for capital gains tax due to a “transfer” of capital assets of telecommunication businesses located in India. This interpretation of the income tax law and levy of capital gains tax was unusual for any company.
The entire issue revolves around the decision of the Ministry of Finance of India, applying a tax law retrospectively to circumvent the decision of the Supreme Court demanding INR 22,500 crores from Vodafone as capital gains and withholding tax. Immediately after this, Vodafone took this case to the Permanent Court of Arbitration in the Hague. The Court unanimously ruled in the favour of Vodafone holding the tax demand of the Indian government unfair and ‘in breach of the guarantee of fair and equitable treatment.’ The Court even asked the government to pay compensation to Vodafone.
The facts of the case of Vodafone International Holdings B.V vs Union Of India & Anr(2012) are as follows:
Vodafone Group Plc is a company based in the United Kingdom, the business that Vodafone does in India is taken care of by its subsidiary Vodafone International Holding BV. The subsidiary is based in the Netherlands. Similarly, Hutchison Telecommunications International Limited (HTIL) company is based in Hong Kong. It provides telecommunication services to countries like Indonesia, Sri Lanka and India but does not operate directly. It also operates through its subsidiaries like CGP Investments Holdings Ltd. based in Cayman Island. CGP investment is fully owned by HTIL.
The dispute began when Hutchison Telecommunication International Limited (HTIL) decided to exit the Indian markets. They owned 67% stakes in the Hutchison Essar Limited based in India. Vodafone offered to buy a 67% stake in HTIL for US dollars 11.1 billion. Just to sum up, the deal took place between the companies based in the Netherlands and the Cayman Islands. The deal took place on Cayman Island and the assets that were transferred were of an Indian company. Hutchison Essar Limited (an Indian Company) became Vodafone Essar Limited.
The deal was completed in May 2007, the Income Tax Department of India was not very happy with the deal and initiated an investigation against Vodafone in September 2007. On October 30, 2009, the Income Tax Department served notice to Vodafone International Holdings BV asking for INR 7,900 crores as capital gains and withholding tax under Sections 201 and 201(1A) of the Income Tax Act,1961.
Income Tax Act, 1961
Section 9
The Income Tax Act governs and collects capital gains tax on any transaction that takes place or accrues from an Indian asset. Any income that accrues out of such a transfer of shares can be taxed under the Income Tax Act calling it the capital gains tax. Section 9 of the IT Act talks about any such income that is a gain under Indian jurisdiction should be charged as per the Act as it is chargeable income for tax purposes in the country. Section 9 of the Income Tax Act, 1961 majorly deals with the implications of tax in case of any income that has been earned by a foreign entity or a non-resident in India.
Section 9(1)(i) also states that in case the operations of a business are not present in India or only a part of their business is being done in India then only a small part of the income earned will be taxed under the Income Tax Act. Section 9 also talks about the “permanent establishment rule” wherein if a foreign entity or resident has a fixed establishment like an office or factory that is used to carry out business in India, any income that may accrue or arise out of such business transactions will be taxable in Indian jurisdiction.
However, following the verdict passed by the Supreme Court the government amended Section 9 of the IT Act to apply it retrospectively to all such taxations.
The scope of Section 9 is wide and covers all kinds of incomes, like, an income from a business or property or asset that is situated in India, income from dividends paid by Indian companies or capital gains arising from the transfer of an asset situated in India.
Three major rules make Section 9 a crucial provision for non resident Indians or foreign entities.
The territorial nexus or The formal source rule
The rule is clear and simple that any income that arises in India is taxable in India, the definition for such an income includes income from business, any accrued interest or capital gains that are gained over the transfer of an asset situated in India.
The residence rule
Any income that is deemed to accrue outside of India will not be taxable in India if the recipient of that deemed income is a non-resident of India. The rule is based on the residence of the individual and taxation laws and rules will apply on the basis of his or her residency.
The inclusions rule
There are certain types of income that do not fall into the above categories and hence a special inclusion has been made for those kinds. Royalties are one of those, if an individual receives royalties from an asset or business situated in India, he is liable to pay tax on those royalties under Section 9 of the IT Act.
Section 201
Section 201 of the Income Tax Act talks about failure to pay TDS (Tax Deducted at Source). TDS is a deduction made to any income which goes to the government as the tax on that accrued income. TDS is cut from salaries by the employer himself and handed over to the government on your behalf, when the employer fails to do so he is deemed as an assessee in default. A specific time frame is provided by the government to pay TDS, after which if the payer defaults he will be liable to penalties. The assessee in default is now liable to pay the TDS as charged along with a penalty.
Section 201 (1A)
When the principal officer of the company defaults in payment of TDS he shall be liable to pay simple interest at the rate of 1% every month on such tax from the date the tax was deductible to the date on which such tax is deducted. And, 1.5% every month from the date that the tax is pending to be paid off until the entire tax amount is paid off.
The interest here is on the remaining TDS that is charged as a penalty for default. In the Vodafone case, the company was served with a notice to pay a hefty sum of INR 7900 crores as capital gains tax and withholding tax, which was the accruing interest due to default in payment of the capital gains tax.
Bilateral Investment Treaty
Article 4(1)
This article provides for fair and equitable treatment to all foreign investors who are investing in companies in the country. As per the provision, any unfair rules made by the country are violative of their rights and this provision is a protection to their rights as investors. In this case, the act by the government to apply the provision of taxation retrospectively turned out to be a violation of their rights as investors and hence Vodafone approached for arbitration in The Permanent Court of Arbitration in the Hague.
- Does the transfer of shares between two foreign companies result in the extinguishment of the majority stake in the Indian company held by a foreign company?
- Can the transfer of shares between two foreign companies be considered as a transfer of capital assets?
- Is such a transaction taxable under Indian jurisdiction?
Petitioners
The petitioner was firm and contended that Hutchinson gain was not chargeable on tax at all under Indian jurisdiction, and hence Vodafone BV is not liable for deductions under the Act. The company was situated in the Cayman Islands and not in India. The petitioners relied on the formal source rule and contended that it was incorrect for the Hutchinson gain to be counted as a valid gain under Indian jurisdiction and to be taxed upon.
Section 9 of the Income Tax Act sets a formal source rule or the rule that means that income received from any source in India is taxable under the Indian jurisdiction, it also includes any income that is accruing or arising out of Indian assets. Here the petitioners were clearly pointing towards the company being situated in the Cayman Islands and not India and so the gains were accruing or the income that they received was not under Indian Jurisdiction. They used this rule to avoid the tax deduction or the tax liability that was arising.
Respondent
The government of India was determined on the stance that the asset was Indian, hence the gain is taxable in India and there is no question regarding the jurisdiction or applicability of the Income Tax Act.
The Bombay High Court
The Income Tax Department continuously sent recovery notices to the Vodafone group and then the Vodafone group decided to seek refuge in the Bombay High Court. Vodafone approached the Bombay High Court with a writ questioning the validity of all prior notices that were being sent to Vodafone along with questioning the jurisdiction of the Income Tax Department.
The Bombay High Court on September 8, 2010, ruled in favour of the Income Tax Department of India and held, “the very purpose of entering into agreements between the two foreigners is to acquire the controlling interest which one foreign company held in the Indian Company, by another foreign company. This being the dominant purpose of the transaction, the transaction would certainly be subject to the municipal law of India, including the Indian Income-tax Act.” Bombay High Court even went further to term this case as a case of tax evasion and not a case of tax avoidance.
The Supreme Court of India
Vodafone, not happy with the view taken by the High Court, knocked on the doors of the Supreme Court of India. The company moved to the Supreme Court via the relief of a Special Leave Petition. The issue in front was- whether the Indian Revenue Authority could levy tax on a sale of shares between two foreign companies, where a controlling or majority stake of the Indian company is purchased in that transaction.
The Supreme Court, on the other hand, took a totally different view from the Bombay High Court and ruled in the favour of Vodafone. The Supreme Court in its January 20, 2012, ruling held that the transaction took place between the two non-resident entities and the contract was executed outside India. It was taken into account that the consideration was also passed outside India. This transaction was in no way under the jurisdiction of the Indian tax authorities and therefore the order of asking tax was quashed.
The court did look into the principle of the “corporate veil” and the idea of piercing or lifting the corporate veil. It was held that the company is independent of its shareholders and the management, and the holding company is not held liable for the acts of the subsidiary. It looked into the idea of whether the transaction was done merely to avoid taxation by piercing the corporate veil. The court also dwelled into the nature of the entire transaction and not bits and pieces of it, they further were aware of how various companies would avoid registration fees and charges levied upon them via companies situated in Mauritius or the Caymans Islands. This case was then classified under strategic tax planning and not tax evasion.
The court opined that this was a “share sale” and not an “asset sale” and there might be some variation in the taxation principles for a “share sale” and for an “asset sale”. The court also mentioned that the word “control” of the company was a question of fact and of law altogether. Further, the court was quick in interpreting that a control is not always necessarily deemed by the number of shares one holds but also by the voting rights or the voting power of the shareholders. Hence, control of power and control of the management is one of the many aspects or benefits of holding the shares of a particular quantity. The court concluded that this was a “share sale” and should be interpreted in this manner for any tax liabilities that are to be imposed.
Review Petition
The Government of India filed a review petition against the judgement on February 17, 2012, but on March 20, 2012, the Supreme Court dismissed the review petition. This was a big setback for the Indian government and many believed that things would end there.
However, there was more to come to this up and coming dispute. The dispute did not contain itself to the limits of the Indian courts and authorities but sought justice through the path of a case in the Permanent Court of Arbitration.
An unprecedented move
The decision did not go well with the Indian government in the same year, the then Finance Minister Mr Pranab Mukherjee, the late ex-President of India did something quite unpredictable. To circumvent the judgement of the Supreme Court, he introduced a retrospective amendment in the Income Tax Act, 1961. This move was first announced in the budget speech of 2012-13.
The retrospective change became effective from the year 1962 itself. This Finance Bill 2012 amended Section 9(1)(i) of the Income Tax Act,1961 and validated the tax that was imposed on Vodafone. The government said that the amendment was only a clarification to remove ambiguity that was already present and provide certainty on the other hand the move damaged the image of India as an investment destination.
Section 9 (1)(i) of the IT Act which was amended, now had explanations 4 and 5 as new additions to the provision. Explanation 5 holds immense value and importance to the Vodafone case; it reads: “An asset or a capital asset being any share or interest in a company or entity registered or incorporated outside India shall be deemed to be and shall always be deemed to have been situated in India, if the share or interest derives, directly or indirectly, its value substantially from the assets located in India”.
It cleared the air for any upcoming contentions that may arise after the Vodafone verdict, as Vodafone was adamant on the part wherein it contended that the company was not an Indian company and hence did not fall under the jurisdiction of Indian courts. Vodafone’s contentions were supported by the Supreme Court in their verdict wherein they asked the government to not demand any capital gains tax from Vodafone. The government knew this judgement would turn up against them as a precedent in various upcoming disputes and to avoid that, they came up with this amendment to Section 9.
The amendment was made to act retrospectively till the year 1961, by adding the phrase ”and shall always be deemed”. The legislative intent behind bringing in a law that acts retrospectively on taxation was to bring in clarity since the previous version of this provision led to ambiguity as to what fell under the category of capital asset taxable under the Indian jurisdiction.
As the name suggests, retrospective means dealing with past events. In simple words, a retrospective law can criminalise an action that was legal when committed. No law is perfect in itself and it contains its own flaws, retrospective taxation is a method to correct the same. It allows countries to pass a law on taxation from a time behind the date on which the law was passed. It is mostly used to correct anomalies in the policies that have in the past allowed the companies to take advantage of the loopholes present in that law.
India was not the first country to do something like this; the US, the UK, the Netherlands, Canada, Belgium, Australia, and Italy have also retrospectively taxed the companies that took advantage of the loopholes present in their previous law.
Reasons for passing the retrospective taxation
Usually, the use of this power, to make amendments that act in a retrospective nature, is conferred upon the legislature. This power is put to use and in effect in two circumstances; either to undo or to nullify a judicial decision that wasn’t in their favour, or sometimes to avoid the citizens from taking advantage of this loophole. In this case, the Supreme Court had decided in the favour of the taxpayer and against the government of India. When the amendment was made to the Income Tax Act that was put into action in retrospective nature as well, it clearly meant that this was done to get Vodafone within the ambit of the provision and compel the company to pay tax. This move was one of the most unusual ones since this was of an overriding nature. This amendment was a disagreement between the legislature and the judiciary, and a soft power or supremacy act that was shown by the legislature over the independent judiciary.
After the passing of the retrospective taxation law
After the passing of the new Act, the onus to settle the taxes was again on Vodafone. India faced very heavy backlash from investors abroad and in India itself. “The retrospective amendment that overturned the decision of the highest court of the land was badly drafted in its wide generalities and carried a perverse sense of vindictiveness,” said Nigam Nuggehalli, Dean of the School of Law at BML Munjal University.
In January 2013, the Income Tax Department issued a fresh demand to the Vodafone group for INR 11,280 in crores. Retrospective taxes are not favoured globally and the international pressure forced the Indian government to settle the matter with Vodafone. The Tax Administration Reforms Commission (TARC) headed by Dr. Parthasarathi Shome was formed to look into the matter afresh. The commission report also suggested retrospective legislation should be avoided. But by 2014, with the next general elections being announced, all the efforts between the telecommunication and the finance ministry failed.
The dispute being unsettled Vodafone looked for other legal methods and in the same order, it reached the Permanent Court of Arbitration in Hague, where it invoked Article 9 of the Bilateral Investment Treaty (BIT) signed between India and the Netherlands in the year 1995.
Article 9 talks about “Investment disputes” that may arise between the two investors. As per the article, they should first opt for negotiation amicably, then if, after a period of 3 months, the dispute cannot be settled by way of negotiations then they may undergo conciliation as per the United Nations Commission on International Trade Law Rules of Conciliation 1980. After conciliation proceedings are initiated and they fail, the parties may proceed with arbitration proceedings as per this article. The provision also mentions the appointment of the arbitrators and the cost of the proceedings.
The Permanent Court of Arbitration is an intergovernmental organisation that was established in the year 1899 it is located in Hague, Netherlands. It is the oldest universal mechanism to settle inter-state disputes. It should not be misled by the name, it is not a Court at least not in the same sense as the International Court of Justice. It is a permanent and administrative framework. There are no permanent judges and ad hoc administrative tribunals are set up for each dispute that comes to the Permanent Court of Arbitration.
Vodafone International Holdings BV (The Netherlands) v. Government of India, (2016)
It was an investor-state dispute where the Court ruled in favour of the investor. The arbitration panel consisted of three members one of which was neutral and one each nominated by the party to the case. The decision was unanimously against India which means all three members voted in favour of Vodafone. Even the panellist nominated by India Rodrigo Oreamuno voted against India and found no merit in India’s case.
Mr. Rodrigo, along with the other two arbitrators on the panel, found it to be a breach of the clause of fair and equitable treatment mentioned in the BIT. Since fair treatment was guaranteed under the BIT it was the duty of the respondent, in this case India to uphold that duty and to provide equitable treatment.
The reason why the decision went in the favour of Vodafone was the violation of the bilateral investment treaty and the United Nations Commission on International Trade Law (UNCITRAL). Article 9(1) of the BIT says that “any dispute between an investor of one contracting party and the other contracting party in connection with an investment in the territory of the other contracting party shall as far as possible be settled amicably through negotiations between the parties to the dispute”. Article 3(5) of the Arbitration Rules of UNCITRAL, says that the “constitution of the arbitral tribunal shall not be hindered by any controversy with respect to the sufficiency of the notice of arbitration, which shall be finally resolved by the arbitral tribunal.”
The Award
The award was as follows:
- Claimant’s claim that the breach of a bilateral investment treaty between the Kingdom of the Netherlands and the Republic of India for promotion and protection of investments done at The Hague on November 6, 1995, is considered and the Tribunal has jurisdiction over it.
- There is a breach of Article 4(1) of the Bilateral Investment Treaty, by the Indian Government “the protection of the guarantee of fair and equitable treatment” is also violated.
- The Government of India is not entitled to claim any tax from Vodafone and should stop any effort to recover the same.
- The 60% cost of arbitration has to be paid by the government of India to the petitioners.
Reasoning for the award
The court relied upon Article 4(1) of the Treaty, which said “protection of the guarantee of fair and equitable treatment”. This meant that the court was of the belief that the treaty was a guarantee or an umbrella protection for the foreign investors that there would be a fair and equitable treatment, that included a proper reliable legal framework and no unnecessary disputes. It also guaranteed that the due process of law would be followed between both parties and there shall be no concealing or fraudulent activities between the two.
The court saw the intent of the Indian Govt. where there were amendments that were brought into to make Vodafone liable retrospectively. The decision of the Indian Govt to introduce such provisions in the Income Tax Act seemed to be made in haste and targeted towards Vodafone entirely. This was considered as unfair treatment towards Vodafone and was not considered to be of an equitable nature at all and hence the arbitral award that was passed was against the Indian Govt.
The award reinforces the trust that investors may have lost due to a breach of fair and equitable treatment. Since retrospective taxation was applied, it created a stir among investors and there was quite a fair amount of withdrawals. This award was a landmark one in showing that there still is scope left for justice. The arbitrator appointed by India himself found no merit in this case as he also knew it was a breach of the clause and protection guaranteed under the BIT.
Latest development
The Ministry of Finance on August 5, 2021, introduced the Taxation Laws Amendment Bill, 2021 in Lok Sabha. This bill removes the contentious retrospective tax demands. According to this new bill any tax demanded for the indirect transfer of Indian assets before May 2012, would be nullified on fulfilment of specific conditions. The conditions include withdrawal of pending litigation by such taxpayers and also a promise that no demand for damages will be made in future. The amendment also proposes to refund the taxes already paid by the concerned taxpayer but without any interest. This move of the central government will benefit both Vodafone and Cairn Energy who were having a legal battle with the Government of India.
The Indian govt. has sought an appeal in Singapore and the case has been referred to a senior court in Singapore. The appeal was filed to set aside the award on the grounds of issue in jurisdiction. India believes that the right to levy tax is the predominant and ultimate right of the country, and hence cannot be challenged under any BIT. BITs are majorly brought in to protect the investors and are not in any way related to taxation. The tax being levied by the Indian government in these cases is on the returns that are gained by the companies based on these investments or transfers of shares. These transactions are protected under the Act but not the taxation that follows.
The Cairn case is very similar to the Vodafone case. Cairn India Holding company in India is an oil exploration company, they are the ones who found oil in Rajasthan, India’s biggest onshore find. It is a fully owned subsidiary of Cairn UK Holding which in turn is a subsidiary of Cairn Energy.
In the Cairn case, Indian assets were transferred by Cairn Energy, the parent company to Cairn India Holding. In 2006, it acquired the entire share capital of Cairn India holding from Cairn UK Holdings. The UK Holdings held 69% of Cairn India Holding. All are part of the same group. This transfer took place because Cairn India Holdings had to go for IPO in India.
In 2011 Cairn Energy sold its shares to Vedanta Group. Again the income tax department intervened and levied taxes upon Cairn Energy based on retrospective taxation.
Arguments by Cairn in the following case were based on the idea of negating retrospective taxation. They contended that prior to the retrospective application of this taxation provision, there was no tax imposed upon the incidental transfer of shares. This exceptional levy of taxes was said to breach the Bilateral Investment Treaty between the UK and India.
This case also went to the Permanent Court of Arbitration and the decision came against India. The court ruled that India had violated the UK- India Bilateral Investment Treaty and it also directed India to pay compensation with interest alongside the arbitration costs to Cairn.
With the decision of two arbitration cases against India. The government needs to accept the truth and rectify its mistakes. When you are already in a pit there is no point in digging it further. The amendment of 2012, has seen three finance ministers from then but none of them tried to change it.
A bad idea only gets worse with time. The amendment brought for Vodafone was used against Cairn. India lost both cases in the Permanent Court of Arbitration and faced embarrassment. The current government has made public statements that India will not use this retrospective law but as long as the law is there, there will be a temptation to use it. With Nirmala Sitaraman introducing the new amendment bill in the retrospective taxation law, there is a hope that the image of India will improve in the international business community.
What is retrospective taxation?
This means a levy of tax on goods or services sold in the past. This can happen due to a new law that was imposed that was not in action when the goods were actually sold, however, it is now applicable and hence you are liable to pay for that tax. Retrospective taxation involves including or introducing a newer provision in an existing law or statute, this provision takes a retrospective effect and will apply to transactions that took place even before the introduction of this provision.
Why is retrospective taxation needed?
To reduce any abnormality in the taxation laws or to prevent the taxpayers from taking advantage of the loopholes present in the taxation system. It is done to demote tax evasion and increase the government’s tax revenue.
What is the Bilateral Investment Treaty?
A bilateral investment treaty is an agreement between the governments of two or more states that contains terms and conditions for private investments by nationals and companies of one state into another state.
Usually, a BIT remains in force for approximately 10 to 15 years or as per the agreement between both countries. If any treaty is to be terminated prior to the expiry period, the terms and conditions for the same are provided in the treaty itself.
What is the relation between BIT and Foreign Direct Investment?
Bilateral Investment Treaties act as a stimulating force for any foreign direct investment. They are the bible and safeguarding source for any foreign investors. Bilateral treaties signed between two countries safeguard their investors from any fraud or malicious activities keeping the investors secure, this encourages foreign direct investment and more investors to invest in businesses overseas. Once any investor feels that the transaction is secured he would likely be more involved in making more such transactions, directly increasing the number of foreign direct investments.
Where were the arbitration proceedings held?
The proceedings took place at the Permanent Court of Arbitration in Hague.
Who was on the arbitration panel for the proceedings?
Canadian trial lawyer- Yves Fortier appointed by Vodafone. Costa Rican lawyer- Rodrigo Oreamuno appointed by India. Sir Franklin Berman as the presiding arbitrator amongst them.
What was the tax levied upon Vodafone?
The tax was called “the capital gains tax”. This is usually levied when there is a transfer of any asset and if there is a gain on that asset, then there is a tax levied upon that gain.
How is capital gains tax calculated?
The calculation of the tax is on the basis of the capital asset and the gain. It also depends on whether the gain was short term in nature or long term.
What is the formal source rule?
The rule means that income received from any source in India is taxable under the Indian jurisdiction, it also includes any income that is accruing or arising out of Indian assets. In simpler terms, the source of the income shall be within the jurisdiction of Indian Courts.
What are Investor- State Dispute Settlements (ISDS)?
This acts like a public international law wherein a private individual (the foreign investor) gets to sue a state or a country for enforcing their rights. In most circumstances, investors who have foreign direct investments in the state have problems with current laws and might find them to be violative of their rights. The investor gains this right to sue the state by way of investment agreements usually known as Bilateral Investment Treaties, as they have clauses and provisions that protect the investor from any actions of the State. These disputes often are solved by way of arbitration under varied international authorities, amongst one is the Permanent Court of Arbitration.
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