INVALIDATING RETROSPECTIVE TAXATION CLAUSE: SIGNIFICANCE AND IMPLICATIONS

An enactment or amendment made by the Parliament which expressly states that it should be implemented from a preceding date is said to be retrospective in nature. This modus operandi of taxation is used by the states to rectify the anomalies in policies that could have enabled the firms in benefitting from the loopholes. The concept of retrospective taxation permits a state to pass an ordinance to tax specific goods and services on erstwhile transaction. Many countries like India, US, UK, Netherlands, Canada, Belgium and Australia have successfully taxed firms retrospectively. The retrospective taxation law was passed in India in the financial year 2012 following the verdict of the Supreme Court in favor of US based telecom giant, Vodafone. The Dutch arm of Vodafone group acquired the Cayman Islands based company for $ 11 Billion in the financial year 2007 which obliquely held a majority stake in the Indian Company of Hutchison Essar Ltd and the firm was later renamed as Vodafone India.

The acquisition of Hutchison Essar Ltd by Vodafone made the Government of India amend the tax laws so as to penalize Vodafone. After amendments in the Finance Act, the tendentious move of enabling the tax department to impose retrospective capital gains tax for deals which involved the transfer of shares in foreign entities located in the country post 1962, was pursued. The amendment made in the Finance Act was intentioned to castigate Vodafone but several other firms too faced the crossfire and had unquestionably constituted multiple arbitrary litigations for India over the years. The amendment made in the Finance Act in the financial year 2012 to validate retrospective taxation remains the most contentious and ambivalent amendments to the Income Tax Act.

Apart from various Arbitrations India has faced in The International Arbitral Tribunal with various states and firms the Cairn UK has been among the landmark ones. The unfavorable verdict for India in the International Arbitral Tribunal at The Hague was for retrospectively taxing Cairn Energy Plc and Cairn UK HoldingsLtd. on alleged capital gains which the firm made in the financial year 2006 by restructuring its entire business model in the country before listing the local unit. The unfavourable award for India made the country introspect at its laws and taxing clauses. Nonetheless the reputation of the state has been at stake due to a complexed tax structure discouraging foreign investors to invest in the country.

The unfavorable award of the International Arbitral Tribunal, the red tape complexities and opaqueness of taxing structure made the Government of India work on its legal structures and introspect at its taxing clauses. The finance minister introduced the Bill in August, 2021 to revoke the tax clause provision that permitted the Government to levy taxes retrospectively. The Bill was passed in the Lok Sabha and Rajya Sabha on the 6th and 9th August 2021 respectively and subsequently on 13th August, 2021 the President of India accorded assent to it. The Bill clearly highlighted the importance of withdrawing retrospective taxation demands which were previously enacted in the financial year 2012 legislation with the objective of taxing the indirect transfers of the Indian assets. The Government of India has been dealing with arbitrations against Vodafone and Cairn Energy on taxes it had claimed retrospectively on various transactions for which these entities entered for the ventures in the country. The Judgment of the Arbitration was in complete favor of the U.K. based companies and the Indian Government was held to be in breach of bilateral investment protection agreements with the Netherlands and UK respectively.

Amending the clauses to refute losses in future was an essential step. The contentions mentioned in the bill argued about the nature of retrospective amendments and the impact it had on the principle of tax certainty and the international reputation of the country. The proposed changes in the bill explicitly and meticulously stated that no tax demand shall be escalated for any indirect transfer of the Indian assets condition being if the transaction was undertaken before 28th of May 2012. Furthermore, the tax that has been levied for the indirect transfers of Indian Assets before the stated date of 28th of May, 2012 would be held nullified of the accomplishment of specified conditions. The specified conditions mention the withdrawal of unresolved and pending litigations along with the incorporation of an undertaking which precisely states that no damages and claims would be filed. The proposed changes incorporated the proposal to reimburse the amount which was paid by the firms facing trail in these cases without interest thereon. The amendments so proposed interpret that tax claims made on offshore transactions executed prior to 28th of May 2012 shall be neutralized and annulled, subject to riders. The move so proposed and undertaken shall help close past disputes and repudiate and negate the future litigation costs. It is significant to mention that the Government proposes to reimburse only the principal amount to the companies and not the interest amount. The revocation of the retrospective taxation is nonetheless a move to ease out the business environment. The step so proposed and taken is in the favor of foreign investors and their interests. The invalidation of the retrospective taxing style has irrefutably welcomed a progressing and comprehensible tax structure which incorporates the perspicuous and rational attributes. The move shall establish an investment and business friendly environment and encourage the inflow of foreign investment and companies in the Indian market. The road from red tape to red carpet has been very deviating and long but it is still being accomplished with such laws and proposals that make the taxing structure and governing laws less penalizing and more trade friendly. The move can also be expected to escalate the economic transactions and activities and benefiting the Government with additional revenue over time. This could undoubtedly enhance the reputation of the state and restore faith in India’s endeavor to usher in business-friendly environment by removing the complex and baffling tax regime.

After this move of invalidating the retrospective taxation the Government should also prioritize to set up a rational dispute resolution mechanism wherever cross border transactions are concerned in order to prevent the disputes from entering the ambit of international courts to save the cost and time. A push in improvising the Arbitration ecosystem is irrefutably required to have a pragmatic impact on the ease of doing business and revenue gains.

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