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Indian Case Summary

Vodafone International Holdings … vs Union Of India & Anr on 20 January, 2012 – Case Summary

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In the case of Vodafone International Holdings B.V. vs Union of India & Anr on 20 January 2012, the Supreme Court of India was tasked with adjudicating a significant tax dispute involving the Vodafone Group and the Indian Tax Authorities, referred to as “the Revenue”. The case revolved around the acquisition by Vodafone International Holdings BV (VIH), a company resident for tax purposes in the Netherlands, of the entire share capital of CGP Investments (Holdings) Ltd. (CGP), a company resident for tax purposes in the Cayman Islands, on 11 February 2007. The Revenue argued that the primary aim of this transaction was the acquisition of a 67% controlling interest in Hutchison Essar Limited (HEL), an Indian company. VIH disputed this, claiming that they had agreed to acquire companies which in turn controlled a 67% interest, but not a controlling interest, in HEL.

Facts

The Hutchison Group, based in Hong Kong, first invested in the telecom business in India in 1992 through a joint venture named Hutchison Max Telecom Limited (HMTL), later renamed as HEL. Over the years, the ownership structure of HEL evolved, with various entities holding shares in the company. In 2007, VIH agreed to acquire the entire share capital of CGP, which indirectly held a 52% shareholding interest in HEL, as well as options to acquire a further 15% shareholding interest in HEL, subject to the relaxation of Foreign Direct Investment (FDI) norms.

Issues

The Revenue sought to tax the capital gains arising from the sale of the share capital of CGP on the basis that CGP, while not a tax resident in India, held the underlying Indian assets. The Revenue’s position was that the transaction was essentially a transfer of a capital asset situated in India and, therefore, the capital gains arising from the transaction were liable to be taxed in India. VIH, on the other hand, argued that the transaction was a sale of a share of a foreign company and, therefore, not liable to be taxed in India.

Court’s Observations

The court observed that the transaction involved the transfer of a capital asset situated in India, and therefore, the capital gains arising from the transaction were liable to be taxed in India. The court also noted that the transaction was structured in such a way as to avoid tax, and that the Revenue had the right to look at the transaction as a whole, rather than in isolation.

The court further observed that the transaction was not a sham or a colorable device, and that the parties had the right to structure their business in a manner that would minimize their tax liability. The court also noted that the Revenue could not disregard the corporate structure of the transaction merely because it resulted in a tax advantage.

In conclusion, the court held that the transaction was not liable to be taxed in India, and that the Revenue could not tax the capital gains arising from the transaction. This decision was a significant victory for Vodafone and had major implications for international tax law and the taxation of cross-border transactions.