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Analysis of Landmark Vodafone Decision

27 Jan 2012

The Supreme Court of India ("SC") pronounced its decision in the controversial and high stakes tax dispute involving sale of shares of an offshore entity, holding underlying Indian shares / assets, by Hutch to Vodafone. The decision reinforces many of the important international taxation principles, as well as the importance of adherence to the Rule of Law. Taxand India considers this landmark decision, highlighting crucial findings and principles and its implications.

The litigation involved two distinct phases, before the Bombay High Court ("HC") and the SC, spread over a period of 4 years. The first round of litigation involved the question of law with respect to whether the Revenue authorities had the jurisdiction to tax the offshore transaction. The HC in its earlier ruling had upheld the jurisdiction of the Revenue authorities to tax such a transaction. In the second round of litigation post the determination by the Revenue authorities that Vodafone was liable to withholding tax, the Bombay HC held that the essence of the transaction was a change in the 'controlling interest' of HEL, which constituted a source of income in India. The HC held that the transaction had significant nexus with India. The HC also held that several other rights had been transferred besides the CGP share, which if situated in India could be taxed in India, and the consideration should be allocated over such rights also. Vodafone had appealed to the SC against this decision of the Bombay HC.

Ruling of the SC
The SC has clarified principles on tax treatment of offshore transfers and has also made some crucial observations, inter-alia, on the need for General Anti Avoidance Rules ("GAAR"), certainty in the tax regime, etc. While concurring with the main order delivered by Chief Justice S H Kapadia ("CJ") (on behalf of Justice Swantanter Kumar and himself), Justice Radhakrishnan, one of the three judges on the bench, delivered a separate detailed judgment which discusses several aspects of the transaction.

Taxand India provides an in-depth analysis of the history of the case and a look at the Supreme Court's decision

Taxand's Take

The controversy around the Vodafone tax dispute has held the attention of international investors and the tax community right since its inception. This landmark ruling reinforces many historically established canons of taxation, provides a stamp of approval to international holding company structures and the modern trends of contractual rights built in shareholders' agreements. It also strikes a balance between upholding a genuine business structure and subterfuges. The ruling sends signals to the Government on aspects such as GAAR, fixes the burden of proof with the Revenue and provides a general guidance on its judicious use. This decision will go a long way in reinforcing the investor confidence and will also usher in a regime of greater certainty for international investors.

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Taxand's Take Author