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Analysis of key issues
India on account of share acquisition of CGP (situated outside India) from a non resident In connection with the transaction. Vodafone filed a writ petition challenging the validity of the notice before the Bombay HC. Hutchison International incorporated in Hongkong sold its SPV in Cayman Islands CGP Investments to Vodafone. the Indian tax authorities issued notice to Vodafone asking Vodafone as to why it should not be treated as an “assessee in default” for not withholding taxes on its payments to the Hutch Group..6 billion to HTIL In this respect. conditional approval was granted by FIPB to Vodafone stipulating that there should be compliance and observance of applicable laws and regulations in India including tax obligations under Indian tax laws. > > > > Thereby.Background Hutchison International. Subsequently. Mauritius > Hutch Essar. India On 11 February 2007.1 billion The transaction was expected to realize an estimated before tax gain of US$ 9. Vodafone got controlling interest in Hutch Essar. Netherlands > > Intermediate Co. Cayman Islands Sale of CGP shares Vodafone. Hongkong (HTIL) CGP Investments. . Vodafone NL acquired 67% stake in Hutch Essar India (52% from HTIL & call option for 15% stake from resident Indians) for US$ 11.
The legal battle Key tax issues under challenge Taxability of capital gains Whether sale of shares of a foreign company between two non residents will result in capital gains tax in India Withholding tax Whether provisions of s. 2010 and the judgement is reserved .195 apply to nonresident acquirer of shares for withholding tax on payment Representative assessee Can Indian subsidiary be regarded as a “representative assessee” of the non resident seller Event milestones February 2007 December 2008 January 2009 May 2010 July 2010 Current status Acquisition of Hutch Essar by Vodafone Bombay HC decision dismissing Vodafone's plea Supreme Court dismisses SLP filed by Vodafone IT Department has issued showcause notice with its final order Vodafone moves Bombay HC against the IT Department order Hearing is completed in Bombay HC on Aug 18.
Business connection: FIPB approval was mandatory and was a condition precedent to the SPA which indicated that this transaction had nexus with India References made to India in the Share Purchase Agreement (SPA) Due diligence of Hutch Essar India was conducted by Ernst & Young Taxation of capital gains based on economic nexus will quadruplicate taxation in various jurisdictions like Mauritius. For example.Taxability of Capital gains LEGAL BASIS Sec 9(1): Income is deemed to accrue or arise in India. Hongkong and India There are no specific ‘look through’ provisions in Indian law to tax non residents for transactions held outside India. Cayman Islands. or Through or from any business connection in India IT Departments' argument Capital asset: The acquisition of one share in CGP by Vodafone NL was a consequence of purchasing interest in the Indian telecom business which encompasses a bundle of rights in India and the transfer of share is incidental to all such rights. ‘look through’ provisions in certain countries tax capital gains on transfer of shares of companies owning immovable properties in that country FIPB approval was not for the acquisition of 52% and FIPB approval was obtained for the 15% stake in which call options were obtained from the Indian owners and the ownership of the same is not transferred to Vodafone Vodafone’s stand . Through transfer of capital asset situated in India.
not a business connection (R. the Supreme Court has directed Vodafone to approach the revenue authorities for initially and then approach the High Court if the authorities answer the jurisdictional facts negatively It can also be viewed that the provisions of section 9 are wide enough and the ‘look through’ provisions for transactions happening outside India involving capital assets situated in India are inbuilt in it > > > > Judicial precedents Favouring Vodafone: Sale of shares an isolated transaction.D. Agarwal & Co 56 ITR 20(SC)) Against Vodafone: Controlling interest not a separate capital asset distinct from shares (Mahadeo Ram Kumar 166 ITR 477 (Cal)) .Taxability of Capital gains Analysis The Bombay High Court while dismissing Vodafone’s plea has held that. there was apparently an “extinguishment of rights” and “relinquishment” by the transfer of controlling interest in the Indian company which constitutes a “transfer” It has also held that the shares in the Cayman company were merely the mode or the vehicle to transfer the assets situated in India The Supreme Court while dismissing Vodafone’s petition did not comment on the taxability of the transaction However.
it appears that investments into India through treaty network may not be faced with many hurdles in claiming beneficial ownership and corresponding treaty benefits provided it is a legal transaction and passes the substance test Instances of substance test are obtaining Tax Resident Certificate (TRC) in Mauritius.Protection under Treaties > > As viewed by some experts. had held that the design of tax avoidance itself is not objectionable if it is within the framework of law and is not prohibited by law and that lifting of the 'corporate veil' is not permissible to deny the benefits of a tax treaty.000 expense and other such conditions prescribed under the local laws of the respective foreign country > > > . criteria in Indo-Singapore treaty for US$ 200. the issue of taxability of capital gains in India may not have arisen if the shares held by the Intermediate Co. (Mauritius ) in Hutch Essar is transferred to Vodafone In this case the DTAA between India and Mauritius would have come in to force whereby the capital gains will be taxable in Mauritius (on basis of the Supreme Court decision in Azadi Bachao Andolan’s case) Key considerations for protection under treaties > Every intermediary holding company needs to pass the substance test and establish its independence and authority to claim itself as the beneficial owner of the investments The Supreme Court in Azadi Bachao Andolan’s case. Therefore.
i. non resident) will be bound by the provisions. The intention of section 195 is to cast an obligation to deduct taxes on the person who is within the ambit of the Indian law to deduct taxes from the income of the person who is not within the ambit of the Indian law (i. If the IT Departments' argument is accepted it will lead to a scenario in which section 195 will have extra-territorial application where even persons having no territorial nexus with India (i. 195(3) and Section 197 of the Act.e. shall deduct tax thereon IT Department’s argument > > The term “any person” in section 195 shall include non-residents.it can recover the tax from the Seller Sec 201 was amended by Finance Bill 2008 to cover failure to withhold tax in the scope of AID with retrospective effect from 1st June 2002 Prior to this only if a person who has deducted tax and has not remitted it is considered as an AID Vodafone’s stand > > Analysis > Assessee in default (AID) . non-resident) The duty to deduct taxes can be cast only on someone who has a presence in India.Withholding of tax – Section 195 LEGAL BASIS Sec 195: Any person responsible for paying any sum to a nonresident which is chargeable to tax.e. However.e. there are conflicting views given by the courts on this aspect The Supreme Court has mentioned that Vodafone is fully safeguarded under Section 195(2).
Therefore. IT department issued notice to the Vodafone NL treating it as assessee in default for not withholding tax and Hutch Essar India treating it as a Representative assessee i. In this case. agent of Hutchison International However. HTIL was not liable to capital gains tax. since the seller was a non-resident.e.Representative assessee > Representative assessee includes any person : who has any business connection with the non resident who has acquired a capital asset in India Normally a representative assessee can only be a person in India. in this case as no capital asset is acquired in India the extra territorial application has to be analyzed > > > .
f 1 Jun ’02 →Representative assessee shall have business connection with non resident. Vodafone indirectly acquired controlling interest in an Indian company and hence the transfer gave rise to capital gain taxable in India →There is a business connection in India as FIPB approval was required Vodafone →No transfer or sale of shares/assets in India →Therefore.Summary of key issues Issue Taxability of capital gains IT Department → By virtue of sale of shares of CGP.e. Legal analysis →Sec 9(1): Income deemed to accrue in India from any business connection in India or through transfer of capital asset in India →Capital asset situated outside India and sale of shares is not an business connection →Controlling interest not a separate capital asset distinct from shares →Sec 195 applicable only if income is taxable in India →No mandatory requirement to obtain “NIL” withholding tax certificate if income not taxable in India →Sec 201 amended by Finance Bill 2008 to cover failure to withhold tax in the scope of AID w. India to show cause as to why it should not be treated as representative assessee →Hutch Essar is a representative assessee with respect to the withholding tax obligation of Vodafone. capital gains not taxable in India →No prior FIPB approval was required to acquire 52% and FIPB approval was obtained for the 15% stake in which call options were obtained and the ownership of the same is not transferred to Vodafone →Taxable presence in India is required and sec 195 does not have extra-territorial jurisdiction. or →A resident or non resident who has acquired a capital asset in India Withholding tax u/s sec 195 →Show cause notice to Vodafone to show cause as to why Vodafone should not be treated as an assessee in default (AID) in respect of failure to deduct tax on the capital gain arising on such transfer →Sec 195 applies to “any person” and Vodafone should have obtained “NIL” withholding tax certificate →Notice issued to Hutch Essar. Netherlands Representative assessee →Hutch Essar is not a party to the transaction and cannot be treated as a representative assessee →Hutch Esaar has no transaction with non resident .
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