Breaking News : Today SC decided the judgement in the favor of Vodafone and set side income tax demand of Rs. 11,000/- Cr. The Tax authority are now required to pay Rs. 2,500/-Cr. back to Vodafone along with 4% interest. This jusdgement will held FDI investment in India again. The copy of the judgement will me made available at the earliest.
On an appeal by Vodafone on its liability of withhold
tax on the consideration paid for the100% stake in CGP
Investments, Cayman Islands (“CGP”) held by Hutchison
International, Hong Kong (“HIK”), the Supreme Court
has pronounced that Vodafone was not liable to
withhold tax. The key points as outlined by the Supreme
Court in holding so are as follows:
• No capital gains could have been said to have arisen
in India
• The structure set up, namely the CGP Vehicle to hold
shares in the Indian Company was set up in 1994 and
had been continued for many years. This was not like
a fly by night operation and therefore could not be
ignored. Therefore there was no need to look into the
substance of the transaction.
• The transaction cannot be looked through, since the
provisions provide for taxability of the gains arising
from the transfer of a capital asset situated in India.
What could be examined was ‘Look at” and which
cannot be construed as ‘Look through’ in the absence
of any specific provisions under the law.
• There was no extinguishment of the Indian entity’s
property
• It would not be possible to dissect the transaction of
sale of shares into different components viz controlling
interest etc., in the absence of any such understanding
or agreement to that effect.
• Given that the transaction is not taxable, section 195
of the Income-tax Act, 1961, would not apply as the
section could apply only to income which is taxable.
• Certainty is integral to rule of law. Certainty and
stability form the basic foundation of any fiscal system.
Tax policy certainty is crucial for taxpayers (including
foreign investors) to make rational economic choices
in the most efficient manner.
The tax alert summarizing the judgment shall follow on
receiving the copy of the judgment.
From Times of India: In a major victory to Vodafone International Holdings, the Supreme Court on Friday set aside the Bombay high court judgement asking the company to pay income tax of Rs 11,000 crore, holding that tax authorities do not have jurisdiction on an overseas transaction. A three-judge bench headed by Chief Justice S H Kapadia held that the IT department has "no jurisdiction" to levy tax on overseas transaction between companies incorporated outside India. Justice K S Radhakrishnan, who wrote a separate judgement, concurred with the findings of the Chief Justice and Justice Swatanter Kumar saying the companies (Vodafone and Hutchison) are incorporated outside and their transaction outside India has "no underlying nexus" with tax authority here.
"Vodafone has no obligation under section 163 clause 1 (c) of Income Tax Act," Justice Radhakrishnan said. The court asked the IT department to return Rs 2,500 crore deposited by Vodafone, in compliance of its interim order, within two months along with 4 per cent interest from the date of withdrawal of the money by the tax department. It also asked Supreme Court registry to return within four weeks, the bank guarantee of Rs 8,500 crore given by the telecom major. Through the USD 11.2 billion deal in May 2007, Vodafone acquired 67 per cent stake in the Hutchison-Essar Ltd (HEL) from Hong Kong-based Hutchison Group through companies based in Netherlands and Cayman Island. Reacting to the judgement, Abhishek Manu Singhvi, one of the senior advocates who appeared in the case, said "we are happy with the Supreme Court order. It has minutely gone through the case and come to a conclusion. Irrespective of the result it is a tremendous victory for Indian judicial System" Earlier, Vodafone had moved the apex court challenging the Bombay High Court judgement of September 8, 2010 which had held that Indian IT department had jurisdiction over the deal. The IT Department maintained that since capital gains were made in India through the deal, Vodafone was liable to pay the tax and issued a show cause notice to it asking as to why it should not be treated as a representative assessee of the Vodafone International Holding. Vodafone, however, challenged the showcause notice before the Bombay high court saying it was share transfer carried outside India.
The appeal was rejected by the high court in December 2008 which was challenged by Vodafone before the apex court. The Supreme Court had also dismissed Vodafone's appeal in January 2009 and directed IT Department to decide whether it had jurisdiction to tax the transaction. The Supreme Court, however, had observed that Vodafone would be at liberty to challenge the IT department's decision if it went against Vodafone and the question of law would also be open. The IT Department passed an order in May 2010 and held that it had competent jurisdiction to treat Vodafone as an 'as sessee in default' for failure to deduct tax at source. This decision of the IT department was challenged by Vodafone before the Bombay high court.
The high court, by its September 8, 2010 judgement, dismissed Vodafone's petition and held that "the essence of the transaction was a change in the controlling interest in HEL which constituted a source of income in India". It was challenged by Vodafone before the Supreme Court on September 14, 2010.
The Supreme Court, by its interim order on September 27, 2010, refused to stay the High Court verdict and asked the IT department to compute the tax liability of Vodafone. On November 15, 2010 the apex court asked Vodafone to deposit Rs 2,500 crore and a bank guarantee of Rs 8500 crore before the hearing of the case began. It also said that if the case goes in favour of Vodafone then the government will have to return the amount to Vodafone along with interest. The Supreme Court had began hearing detailed arguments on in the case on August 3, 2011 and had reserved its judgement on October 19, 2011.
tax on the consideration paid for the100% stake in CGP
Investments, Cayman Islands (“CGP”) held by Hutchison
International, Hong Kong (“HIK”), the Supreme Court
has pronounced that Vodafone was not liable to
withhold tax. The key points as outlined by the Supreme
Court in holding so are as follows:
• No capital gains could have been said to have arisen
in India
• The structure set up, namely the CGP Vehicle to hold
shares in the Indian Company was set up in 1994 and
had been continued for many years. This was not like
a fly by night operation and therefore could not be
ignored. Therefore there was no need to look into the
substance of the transaction.
• The transaction cannot be looked through, since the
provisions provide for taxability of the gains arising
from the transfer of a capital asset situated in India.
What could be examined was ‘Look at” and which
cannot be construed as ‘Look through’ in the absence
of any specific provisions under the law.
• There was no extinguishment of the Indian entity’s
property
• It would not be possible to dissect the transaction of
sale of shares into different components viz controlling
interest etc., in the absence of any such understanding
or agreement to that effect.
• Given that the transaction is not taxable, section 195
of the Income-tax Act, 1961, would not apply as the
section could apply only to income which is taxable.
• Certainty is integral to rule of law. Certainty and
stability form the basic foundation of any fiscal system.
Tax policy certainty is crucial for taxpayers (including
foreign investors) to make rational economic choices
in the most efficient manner.
The tax alert summarizing the judgment shall follow on
receiving the copy of the judgment.
From Times of India: In a major victory to Vodafone International Holdings, the Supreme Court on Friday set aside the Bombay high court judgement asking the company to pay income tax of Rs 11,000 crore, holding that tax authorities do not have jurisdiction on an overseas transaction. A three-judge bench headed by Chief Justice S H Kapadia held that the IT department has "no jurisdiction" to levy tax on overseas transaction between companies incorporated outside India. Justice K S Radhakrishnan, who wrote a separate judgement, concurred with the findings of the Chief Justice and Justice Swatanter Kumar saying the companies (Vodafone and Hutchison) are incorporated outside and their transaction outside India has "no underlying nexus" with tax authority here.
The appeal was rejected by the high court in December 2008 which was challenged by Vodafone before the apex court. The Supreme Court had also dismissed Vodafone's appeal in January 2009 and directed IT Department to decide whether it had jurisdiction to tax the transaction. The Supreme Court, however, had observed that Vodafone would be at liberty to challenge the IT department's decision if it went against Vodafone and the question of law would also be open. The IT Department passed an order in May 2010 and held that it had competent jurisdiction to treat Vodafone as an 'as sessee in default' for failure to deduct tax at source. This decision of the IT department was challenged by Vodafone before the Bombay high court.
The high court, by its September 8, 2010 judgement, dismissed Vodafone's petition and held that "the essence of the transaction was a change in the controlling interest in HEL which constituted a source of income in India". It was challenged by Vodafone before the Supreme Court on September 14, 2010.
The Supreme Court, by its interim order on September 27, 2010, refused to stay the High Court verdict and asked the IT department to compute the tax liability of Vodafone. On November 15, 2010 the apex court asked Vodafone to deposit Rs 2,500 crore and a bank guarantee of Rs 8500 crore before the hearing of the case began. It also said that if the case goes in favour of Vodafone then the government will have to return the amount to Vodafone along with interest. The Supreme Court had began hearing detailed arguments on in the case on August 3, 2011 and had reserved its judgement on October 19, 2011.
2 comments:
asset Management company
I Agree your post is useful to visitor. I like to share to my friends. By Regards Brochure Printing Services
Post a Comment