Bombay HC rules in favour of Vodafone

With the high court here ruling in favour of Vodafone in a transfer pricing case, the Indian arm of the British telecom company has scored another victory against tax authorities. The case pertains to the sale of its call centre business to Hutchison’s India entity and assignment of call options to Vodafone International BV in 2007-08.

The authorities pursued with their tax demands under transfer pricing rules, despite the Supreme Court having ruled against similar cases earlier this year. In fact, Vodafone approached the high court after a fresh demand was made by the authorities this July.

Fereshte D Sethna, senior partner at DMD, legal advisor to Vodafone, said: “The verdict has reaffirmed justice for Vodafone and is an excellent signal for foreign investors. The high court has struck down the stand of the tax authorities premised inter alia on the fundamental position that tax exigibility of the transaction was already considered by the Supreme Court back in 2012. The tax office stance to bring an Indian subsidiary to tax on the very same transaction was rightly not countenanced by the court.”

The ruling has come as a rap on the knuckles of tax authorities for pursuing the case even after the government decided not to pursue similar transfer pricing cases earlier this year.

Following the Supreme Court ruling in 2012 in favour of Vodafone in a $2-billion tax case, tax authorities adjusted the valuation of assignment of call options under the transfer pricing rules by ~8,500 crore and slapped a fresh tax demand of ~3,100 crore on the Indian arm of Vodafone.

CASE HISTORY

Sept 2007: Income tax (I-T) department slaps Vodafone International BV with a tax demand of $2 billion

Jan 2012: Supreme Court sets aside I-T department's claim, saying transaction carried out of India cannot be taxed

Feb 2012: I-T department slaps ~3,100-crore tax notice on Vodafone India

Sept 2013: Bombay HC dismisses Vodafone's petition and refers it back to tax tribunal

Dec 2013: Income Tax Appellate Tribunal asks Vodafone to deposit ~200 crore

Dec 2014: Tribunal says Vodafone liable for tax payments

Sep 2015: High Court sets aside Tribunal order on Vodafone tax notice

RESOLVED CASES

Vodafone:

Bombay HC ruled in favour of Vodafone, saying it was not liable to pay ~3,100 crore in additional tax in a transfer pricing case

Castleton:

Got relief on minimum alternate tax (MAT) after the AP Shah committee in its report said foreign companies without a permanent establishment or place of business in India should not be liable to pay MAT

STILL WAITING

Cairn: Regarding a tax demand of ~20,495 cr for failing to deduct withholding tax on alleged capital gains. Matter in international arbitration; government to appoint its arbitrator

Nokia: Relates to a tax demand of

~21,153 cr

over non-deduction of tax at source concerning royalty payments to its then parent, Nokia Oyj

Shell: In November 2014, the Indian unit of Royal Dutch Shell Plc won

~18,000-cr

transfer pricing cases against I-T department. Final call on the matter yet to be taken by the government

The tax authorities took suo motu cognisance of the two said transactions and held that even though the transaction of the call centre was between two domestic companies, "it was pursuant to the share sale agreement with Vodafone International" and so was liable to come under transfer pricing rules.

The earlier claim was on the parent company Vodafone International BV, which was dismissed by the Supreme Court in 2012. Interestingly, the tax authorities made fresh claims in the same case on the Indian arm Vodafone India Services, citing the call centre transaction and assignment of put options to Vodafone International BV in 2007-08. In February 2012, Vodafone India Services skipped the process of appeal with the tax authorities and filed a writ petition with the Bombay High Court, as the fresh demand had been made after the January 2012 ruling of the Supreme Court.

Throughout the proceedings, Vodafone India maintained that the transaction was not an international one and, therefore, could not attract tax under the transfer pricing rules.

In 2012, the Bombay High Court asked Vodafone India Services to go through the dispute resolution process of the income tax instead of appealing directly. After several rounds of appeal, the Income Tax Appellate Tribunal ruled in December 2014 that tax authorities had the powers to raise tax on Vodafone in the~8,500 crore transfer pricing case.

A Vodafone group spokesperson in London said the company welcomed the Bombay High Court's judgment. While the ruling may be a shot in the arm for Vodafone, tax specialists claim that such long-drawn cases are time consuming even if the end result is in favour of the aggrieved party.

Revenue Secretary Hasmukh Adhia on Thursday said the ministry would study the Bombay High Court order and "take a call accordingly".