Cairn to use enforcement powers to recover $1.4 bn
Our shareholders are watching and expect India to conclude the matter, says Cairn
NEW DELHI: British oil firm Cairn Energy Plc on Sunday said its shareholders, including top financial institutions of the world, expect the use of the company’s “strong powers of enforcement” to recover $1.4 billion from the Indian government should it not keep its word of honouring international arbitration tribunal awards on retrospective taxes.
Cairn has already moved courts in the US, UK, Netherlands, Canada, France, Singapore, Japan, UAE and Cayman Islands to get the December 21 international arbitration tribunal award registered and recognised. That is the first step before it can seek seizure of the Centre’s assets such as bank accounts, payments to state-owned entities, aeroplanes and ships in those jurisdictions, in case New Delhi does not return the value of the shares seized and sold, dividend confiscated and tax refund stopped to adjust a ₹10,247 crore tax demand raised using retrospective legislation.
Cairn CEO Simon Thomson, who last month met top finance ministry officials for three days over the issue, said the Centre should keep its word on honouring arbitration awards and return the $1.4 billion that an international arbitration tribunal has ordered rescinding a retrospective tax demand.
“Our shareholders are watching,” he said in a Twitter post. “They expect India to honour its obligations and to quickly bring this matter to a conclusion and if India does not do that, and if India delays, then our shareholders expect us to pursue our strong powers of enforcement which we have to do”.
Finance minister Nirmala Sitharaman had on March 5 indicated the government’s intent to appeal against the award when she said it is her “duty” to appeal in cases where the nation’s sovereign authority to tax is questioned.
Interestingly, the December 21 arbitration award specifically made clear that the basis of the judgment was not a challenge to the 2012 law, which gave the government powers to tax deals retrospectively, or India’s sovereign right to tax. “The issue at stake is thus not a matter of domestic tax law; it is rather whether the fiscal measures taken by the State, valid or not under its own tax laws, violate international law,” the tribunal had said.
After losing a Supreme Court case against levying tax on capital gains made in the 2007 sale by Hutchison of its India business to Vodafone for $11.2 billion, the government had in 2012 enacted legislation that gave it powers to tax such deals retrospectively. Thereafter the tax department said Vodafone should have withheld tax on the deal and issued a notice seeking ₹11,218 crore, later augmented by ₹7,900 crore in penalties.
In January 2014, the department assessed that Cairn too made an alleged capital gain on reorganising its India business prior to an IPO in 2006-07 and sought ₹10,247 crore in taxes. But unlike Vodafone where no enforcement action was taken, it seized and sold Cairn’s residual stake in the India unit, confiscated dividends due from such holding, and stopped tax refund due to it.