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Income Tax Laws – I

Notes investment destination, while Bloomberg Global Poll conducted in September 2010 put
India in the third position, above the United States of America (US).
However, the very same image is said to have taken a beating with the recent Vodafone
Tax case, which has been revolving in courts since 2009. With clear signs of the court ruling
in favour of the tax authorities, many global companies are said to be rethinking their
investment plans in India, keeping in mind the impact of the judgment on the taxation
front. The Doing Business Report 2011 of World Bank has ranked India at 134, below
neighbouring countries like Pakistan and Bhutan. This is a result of procedural difficulties
for start-up companies and investment companies, in India and abroad.
Tax regulations play a major role in cross border transactions and investments in a country.
Tax havens, open borders and DTAA countries are major destinations for investment
through Foreign Direct Investment (FDI) or other routes. The Vodafone tax case throws an
interesting question on the taxability of a non-resident company acquiring shares of a
resident company through an indirect route. This is a landmark case, as it is for the first
time that the tax departments have sought to tax a company through a mechanism of
tracing the source of acquisition. While we have heard about lifting the ‘corporate veil’,
this instance has set a rare example wherein the Indian tax authorities have gone to length
to interpret the existing tax laws, to bring a global company like Vodafone to its tax ambit.
Vodafone International Holdings BV, based in Netherlands and controlled by Vodafone
UK, obtained the controlling interest and share of CGP Investments Holdings Ltd (CGP)
located in Cayman Island for a value of $11.01 billion from Hutchinson Telecommunications
International Ltd (HTIL), which had stake in Hutchinson Essar Ltd (HEL) that handled the
company’s mobile operations in India. HEL had its stake in CGP Holdings, from which
Vodafone bought 52 per cent of HEL’s stake in 2007, thereby vesting controlling interest
over them. The Bombay High Court, on September 8, ruled that where the underlying
assets of the transaction between two or more offshore entities lies in India, it is subject to
capital gains tax under relevant income tax laws in India. The Court invoked the nexus
rule wherein a state can tax by connecting a person sought to be taxed with the jurisdiction,
which seeks to tax. The treatment of the company as an Assessee in Default (AID) under
Section 201(1)of the Income Tax Act and reading Sections 5(2), 9(1) and 195, the court came
to the conclusion that Vodafone was liable to deduct tax at source (TDS). Vodafone has
now appealed before the Supreme Court to revisit the judgment, which makes them liable
for a record amount of ` 12,000 crore going to the tax authorities’ kitty.
Vodafone raises pertinent questions on the issue of taxation of non-resident entities. The
judgment will have direct impact on transactions of major acquisitions like SABMiller-
Foster and Sanofi Aventis-Shanta Biotech. Similar transactions that existed earlier are Sesa
Goa, AT&T and General Electric. British firm Cairn Energy has already agreed to pay tax
in India as well as the UK on selling its stake in Cairn India to Vedanta Resources from
$6.65 billion to $8.48 billion. Depending upon the size of the stake sale, the tax liability
could range between $868 million and $1.1 billion. The judgment would definitely throw
a cautious note to major investors and M&As in India; however, it does not have that great
an impact to curtail the investment flow to an emerging destination like India. The judicial
propriety of the case is still to be settled when the matter comes for final stages in the
Supreme Court. Going by the events in the lower courts, the Supreme Court is unlikely to
disturb the Bombay High Court ruling.

The global community is keenly watching the current trends happening in the Indian
subcontinent, especially since it has become an emerging player at the socio-economic
and political levels. United Nations Conference on Trade and Development (UNCTAD)
has reported that India is set to dislodge the US by December 2012 to become the second
best destination for FDIs, the major component of which is M&As. India is also set to
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