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KPMG Flash News Vodafone International Holdings BV PDF
KPMG Flash News Vodafone International Holdings BV PDF
KPMG IN INDIA
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1
Vodafone International Holdings B.V. v. Union of India & Anr. [S.L.P. (C) No.
26529 of 2010, dated 20 January 2012]
© 2012 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative
(“KPMG International”), a Swiss entity. All rights reserved.
The Judgment
The structure and the flow of transfer are depicted below:
• After a detailed hearing before a three-judge bench
headed by the Chief Justice of India, the Supreme
Court delivered its verdict on the case on 20
January 2012. The key highlights of the decision
are as under.
3 McDowell and Co Ltd v. Commercial Tax Officer [1985]154 ITR 148 (SC)
© 2012 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative
(“KPMG International”), a Swiss entity. All rights reserved.
Some of the key additional observations of Justice
The Revenue cannot start with the question as to
Radhakrishnan in his judgment are summarised
whether the impugned transaction is a tax deferment/
below:
saving device, but it should apply the “look at” test to
ascertain true legal nature of the transaction. On incorporation of a company, the corporate
property belongs to the company and members
The authorities may invoke the “substance over form”
have no direct proprietary rights to it, but merely
principle or “piercing the corporate veil” test only after
to their “shares” in the undertaking and these
it is able to establish on the basis of the facts and
shares constitute items of property which are
circumstances surrounding the transaction that the
freely transferrable in the absence of any express
impugned transaction is a sham or tax avoidant.
provision to the contrary.
Every strategic foreign investment coming into India
should be looked at in a holistic manner, bearing in In the absence of LOB Clause and the presence
mind factors such as: the concept of participation in of CBDT Circular No. 789 of 2000 and Tax
investment, the duration of time during which the Residency Certificate (TRC), on the residence
holding structure exists; the period of business and beneficial interest/ownership, the tax
operations in India; the generation of taxable department cannot at the time of
revenues in India; the timing of the exit; and the sale/disinvestment/exit from such Foreign Direct
continuity of business on such exit. Investments (FDI), deny benefits to such
Mauritius companies of the Treaty by stating that
Merely because at the time of exit, capital gains tax
FDI was only routed through a Mauritius
becomes not payable or exigible to tax would not
company.
make the entire “share sale” (investment) a sham or a
tax avoidant. LOB and look through provisions cannot be read
into a tax treaty but the question may arise as to
The McDowell decision cannot be read as leading to a
whether the TRC is so conclusive that the tax
conclusion that all tax planning is illegal, illegitimate or
department cannot pierce the veil and look at the
impermissible and that there is no conflict between
substance of the transaction. India-Mauritius tax
the Supreme Court’s decisions in the McDowell and
treaty and CBDT Circular No. 789 dated 13 April
the Azadi Bachao Andolan case.
2000 would not preclude the Income tax
The question of providing “look through” in the Statute department from denying tax treaty benefits, if it
or in the tax treaty is a matter of policy and has to be is established, on facts, that the Mauritius
expressly provided for. Similarly, Limitation of company has been interposed as the owner of
Benefits (LOB) has to be expressly provided for in the the shares in India, at the time of disposal of the
tax treaty. Such clauses cannot be read into the shares to a third party, solely with a view to avoid
Section by interpretation. tax without any commercial substance.
On the applicability of withholding tax The tax authorities, notwithstanding the fact that
the Mauritian company is required to be treated
(Section 195 of the Act) and as the beneficial owner of the shares under
representative assessee (Section 163 of Circular No. 789 and the Treaty, are entitled to
the Act) provisions look at the entire transaction of sale as a whole
and if it is established that the Mauritian company
• The Supreme Court held that: has been interposed as a device, it is open to
The question of withholding tax at source would not them to discard the device and take into
arise as the subject matter of offshore transfer consideration the real transaction between the
between the two non-residents was not liable to parties, and subject the transaction to tax.
capital gains tax in India. Even though the TRC can be accepted as
For the purposes of Section 195 of the Act, tax conclusive evidence for accepting status of
presence has to be viewed in the context of the residents as well as beneficial ownership for
transaction that is subjected to tax, and not with applying the tax treaty, it can be ignored if the
reference to an entirely unrelated matter. treaty is abused for the fraudulent purpose of
evasion of tax.
• The Supreme Court further observed that as there was no
incidence of capital gains tax in India, the provisions Revenue’s stand that the ratio laid down in the
under Section 163 of the Act, for treating Vodafone as a McDowell case is contrary to what has been laid
representative assessee of HTIL, were not applicable. down in Azadi Bachao Andolan case is
unsustainable, and therefore, does not call for
Highlights of the supplemental concurring any reconsideration by a larger Bench.
judgment passed by Justice K S In trans-national investments, provisions are
Radhakrishnan usually made for exit route to facilitate an exit on
account of good business and commercial
• Justice Radhakrishnan gave a separate judgment, reasons such as dispute between partners,
concurring with the views of the Chief Justice on all major uncertain political situations, etc.
issues.
© 2012 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative
(“KPMG International”), a Swiss entity. All rights reserved.
Transfer of shareholding in CGP, on facts, was not the
fall out of an artificial tax avoidance scheme or an
artificial device, pre-ordained, or pre-conceived with the
sole object of tax avoidance, but was a genuine
commercial decision to exit from the Indian Telecom
Sector.
Section 9 of the Act covers only income arising from a
transfer of a capital asset situated in India and it does
not purport to cover income arising from the indirect
transfer of capital asset in India. Section 9 of the Act
has no “look through provision” and such a provision
cannot be brought through construction or interpretation
of a word ‘through’ in Section 9 of the Act. Shifting of
situs can be done only by express legislation.
The facts in the instant case can be distinguished from
4
that of Eli Lily case where services were rendered in
India and a portion of salary was received in India.
Section 195 of the Act would apply only if payments are
made from a resident to another non-resident and not
between two non-residents situated outside India.
Conclusion
For the reasons discussed above, the Supreme Court held that
gains arising from the said transaction were not liable to tax in
India, and that therefore there was no obligation on Vodafone
to deduct tax at source.
In view of the above, the Supreme Court has directed the tax
authorities to return INR 25000 million, which was earlier
deposited by Vodafone, along with 4 percent interest and
return the bank guarantee.
Our comments
The decision of the Supreme Court is expected to have a far
reaching impact on the taxability in India of cross-border
transactions. It will also have a significant bearing on several
similar transactions which are currently being examined by the
income-tax authorities.
While delivering the judgment, the Supreme Court has
acknowledged that certainty and stability form the basic
foundation of any fiscal system, thereby guiding investors on
where they stand and also helping the tax administration in
enforcing the provisions of the taxing laws.
____________________________________
4 CIT v. Eli Lilly and Company (India) P. Ltd. (2009) 15 SCC 1
© 2012 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative
(“KPMG International”), a Swiss entity. All rights reserved.
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© 2012 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative
(“KPMG International”), a Swiss entity. All rights reserved.
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© 2012 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative
(“KPMG International”), a Swiss entity. All rights reserved.