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LATEST NEWS UPDATES | Vodafone-like transactions should yield tax and the law must make that clear

Vodafone-like transactions should yield tax and the law must make that clear

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published Published on Mar 20, 2012   modified Modified on Mar 20, 2012
-The Economic Times

The Budget's retrospective clarification of what is meant by transfer of assets in India entailing a capital gains tax payment is controversial but necessary and unavoidable. The Supreme Court ruled in favour of Vodafone and against the government in the company's disputation of a capital gains tax claim in its acquisition of Hutch-Essar. 

This is on ground that might be legally firm but is quicksand for logic. The Court said that Indian tax laws privilege form over content, that they mandate the government to look at, rather than look through, a transaction entailing transfer of assets. 

At the level of form, Hutch sold its shares in an overseas company to an overseas Vodafone subsidiary and, if one does not look beyond form, there is no case for Indian tax authorities to raise a claim on an overseas transfer of overseas assets. But if one asks why the transaction took place and why the overseas company was worth anything at all, the picture changes. 

Vodafone bought the overseas company and paid good money for it because it controlled Hutch-Essar, a dominant player in the world's most dynamic telecom market. Now, what gives a government the right to tax anything at all? Tax is the price people pay for the state's multiple services that together enable civilised existence and prosperous commerce. 

Hutch-Essar became a valuable company thanks to a variety of policies (including allocation of cheap spectrum) and innovative business practices allowed by overall policy and regulation. When such a company is sold and generates capital gains, and India has a policy of taxing capital gains, why should the transaction not yield tax to India? Because of the form of the transaction, says the Court. This is a conclusion that defies logic but might be warranted because of lack of clarity in the intent of the law. 

Budget 2012 seeks to supply the needed clarification on the intent of the law, so that form would no longer prevail over substance. This makes for firm, even if dour, clarity on the subject. And that is wholly welcome from the point of view of domestic and foreign investors. Vodafone had received a tax notice before it made its final payment. So prior ignorance was no excuse.

The Economic Times, 20 March, 2012, http://economictimes.indiatimes.com/opinion/vodafone-like-transactions-should-yield-tax-and-the-law-must-make-that-clear/articleshow/12336274.cms


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