A corollary of the Rule of Law is that legislation with retrospective effect is highly dubious, argues Kian Ganz. The latest budget proposals to tax offshore transactions going back to 1962, is a worrying sign of the kind of country India wants to be.
Pranab Mukherjee’s 2012 Union Budget speech was soporific and uninspiring, agreed most who had the patience to listen (or a job that required them to).
But what should have been one of the most important parts of the budget was not in the speech and instead buried deep in the new Finance Bill, which was uploaded by the finance ministry shortly after the speech.
Translating the legalese, the Finance Bill says in section 4 that:
- for the purposes of charging tax,
- If a company’s value “substantially” derives “directly or indirectly” from assets located in India (i.e. Hutchison Essar entity’s Indian mobile phone networks and assets),
- Even if it is registered or incorporated outside of India (i.e.: the Cayman Islands holding company of Hutchison Essar that Vodafone bought from Hutch),
- Then that company will be treated as an Indian company and will be subject to the whims of the income tax department.
This sends a clear message that the government does not want companies to structure transactions in complex, seemingly artificial ways to reduce their tax bill in India.
This is defensible and few aam admi will have sympathies for an MNC saving tax.
It is fair enough too that the government wants to fill its coffers in the India M&A boom, particularly if foreigners end up shopping here. And the Union really could use the money and invest it back into the country.
You could even argue that Vodafone and others who build such complicated offshore structures have it coming. Ironically, in Vodafone’s UK home the company attracted heavy flak for its tax structures and settling a tax bill with the government in 2010 that saved it around £6 billion pounds.
However, it is almost impossible to defend that the new law, which taxes deals such as Vodafone’s, “shall be deemed to have been inserted with effect from the 1st day of April, 1962”.
To non-lawyers this might seem odd but lawyers will be quick to spot that it actually violates one of the most basic principles of a democratic society: the Rule of Law. This is the principle that no one, not even the government, is above the law.
A corollary of the Rule of Law is that legislation with retrospective effect is highly dubious and in fact the Indian constitution also bans retroactive criminal legislation.
Imagine being jailed for an act that was not a crime earlier. Say that you ate beef two years ago but today the government passes a law that anyone who’s ever eaten beef, even when it was not illegal, should go to jail.
Retroactive laws are the perfect tool for authoritarian states to persecute its citizens.
Topically more relevant in India is that the Rule of Law safeguards against corruption.
If someone stole your property and after you filed a complaint he was convicted for theft. But then the state changes theft laws retrospectively, allowing thieves to keep stolen property. It just so happens that your thief has become the local MLA too.
Certainty is also a fundamental principle of a good taxation system, which is something both Adam Smith and Chanakya agreed on.
People should be able to plan their lives and affairs in a manner they can predict. A simple example: you pay income tax at the standard rates for 20 years. One day the government makes a law that doubles all tax rates in the last 20 years, making the historical difference payable immediately.
There is enough here already for jurists and others to complain about but the real sucker punch is still coming.
Deeper in the Finance Bill is hidden section 113, which is a tour-de-force of terrible legal drafting, consisting of a single run-on sentence of 244 (!) words and 30 commas.
Translated and semi-simplified into human language, it basically says that:
- If in the past the tax authorities made a demand to tax an acquisition of Indian assets (read “Vodafone” under the new rules above),
- And if those assets were bought through the “transfer of a share or shares of a company registered… outside India” (one share, Cayman Islands - Vodafone check!),
- Then that demand “shall be deemed always to have been valid” and “shall not be called I question on … any ground including” that the transaction took place outside of India (Vodafone’s exact argument),
- Even if a court decided differently,
- And the government does not have to refund any money paid to it so far by the company in any way (Vodafone has already deposited Rs. 2,500 crore with the IT Department, for example).
If you want to read between the lines, read this: “Vodafone, you may have won fair and square in the highest court of the land after years of battle in our courts, but you know what, just hand over those Rs. 11,218 crore that we claimed you owed us anyway.”
It is probably not illegal for the government to do this - it has passed retrospective tax laws before and courts have upheld these - and the Chief Justice of India (CJI) SH Kapadia’s Vodafone judgment was not without flaws or room for argument.
But this kind of overreach by the legislature should be seen as bizarre and frightening.
Vodafone spent dozens of crores of Rupees on legal and other advisers. Tax officials and senior government lawyers researched, studied and argued these cases for thousands of hours that they could have spent on other socially and economically useful matters.
Most damningly, perhaps, Kapadia and two of his brother judges in the Supreme Court and two more in the Bombay high court wasted literally months listening to arguments and delivering judgments, which the government is now effectively trying to turn into scrap paper. There are almost 60,000 cases pending in the Supreme Court, a number that is increasing by around 10% per year, while more than 3.2 crore cases are pending nationally.
It can make you wonder (or cry) about why the government ever bothered to let the courts do their thing for so long, if it was always going to force a win, extra-judicially if necessary. It may also be intended as a slap in the face of the Supreme Court, which has hosted some of the most activist judges in recent memory and has been a thorn in the government’s side over matters such as 2G, black money and other cases.
Finally, the most valuable and dangerous lesson for foreign investors may be that even if you are a multi-billion dollar multinational, you should not ever upset the Indian government.
It is a popular pastime for lawyers and advisers to try and justify India as an investment destination vis-à-vis China. Considering that India’s totalitarian neighbour has faster economic growth, better manufacturing and a much more efficient government, this is not that easy.
The India case therefore often turns on India having a large and young workforce, a fundamentally strong economy, and a democracy under the Rule of Law. Indian courts may be slow, but they are independent and at least call the Government to account and give you a solution if you are wronged, they argue. In China, by contrast, there is no accountability and if the Communist Party is out to get you you’re toast.
After this Budget it becomes hard to see how lawyers will be able to argue for the benefits of the Indian system over China.
This is not about whether Vodafone or other foreign or domestic companies should be paying tax or not.
This is about what kind country India wants to be.
This article first appeared in Mint on Friday night (16 March). Legally India has an exclusive content partnership with Mint, which will feature the latest legal news and analysis every fortnight on Fridays in its print and web editions.
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All such transactions are taxed in all such developed countries including China .
So far Adam Smith and Chanakya concerned, the author needs to read both the genius before quoting them selectively .
With regard to upholding rule of law, retroactive amendments should be carefully made to prevent injustice in the name of of legal positivism. If you read the reasoning given by Justice Y.V. Chandrachud of Bombay HC, you will find it ot be more clear and convincing as compared to the SC.
A lot of lawyers dont seem to have grasped the entire effect of the vodafone judgment. Supreme Court judgments being declaratory, the judgment had the effect of rendering all cross-border transactions non taxable since 1962 (Prospective overruling being a very rare phenomenon).
As a result, barring any limitation, the government would have to payback all the taxes paid for such transactions since 1962. A lawyer well-versed with unjust enrichment and the mafatlal case would say that the gov would not only pay the taxes but also the use and enjoyment of the money by the government. The mafatlal case however being open to interpretation.
In any case, the government would have had to shell out crores of rupees as a result of the vodafone case by paying back all the taxes paid since 1962. At the least, it can be said that there was a lot of legal uncertainty in this matter.
the amendment seeks to remove this uncertainty. True however, rather than not paying back the taxes, the government would gain some 40,000 crores. It is clear that the government could not have faced any loss by paying back the money. The manner in which they have protected themselves is the only questionable aspect.
But from what I do know, it seems that the judgement goes against basic economics.
#3 Agree, the government indemnifying itself against retrospective pay-outs after the SC judgment seems more defensible.
Just wanted to add a small thing - yes, #2 Delhi lawyer, it was not intended to be a balanced reportage but clearly marked as an opinion/argument on the isolated point of legislature interfering with the court process.
My personal concern is that if the government is happy to effectively legislate away a decision the apex court has taken, no matter how flawed, then:
1. What is the point of having the court?
2. Why should people bother wasting time fighting the government in court?
3. The government becomes effectively above the law.
4. There is no finality to SC verdicts (it becomes a situation almost as bad as the Indian arbitration system where no award is seemingly final).
5. The budget reduced the entire litigation exercise between Vodafone and the tax department to a charade.
6. FDI confidence in the court system and government, after the Vodafone decision was welcomed widely.
6. And countless similar reasons.
For the purposes of this op-ed, I was not going into whether what the government did was legal (maybe), whether Vodafone and others are misuing offshore transactions (they possibly are) or whether Kapadia's judgment was legally sound, or whether he should have recused himself.
All that is about different issues and are missing the more fundamental danger of this kind of law making. My point is merely pragmatic: just because you may agree with the end of taxing Vodafone, does not necessarily sanction the means the government has used.
I welcome your views and thoughts on this.
Best regards
Kian
In response to your questions and concerns, I submit as under:
1)What is the point of having the court?
The purpose of having the court is to get justice. This justice is delivered based on existing laws or by judicial precedents. But, in a society where the common man can't even afford to fight a tax related case against the govt. (due to huge legal expenses), but large MNCs can retain the best lawyers to fight for them, arguing on transactions which clearly reflect a misuse of law and evading huge amount of money (which if received by the govt. shall benefit the society at large),such judgment pronounced deems to be unfair and does not ensure delivery of justice. When Court of Justice becomes a mere Court of Law, then the introduction of such retroactive amendment is corrective in action.
2) Why should people bother wasting time fighting the government in court?
You could have said this when each and every judgment passed against the Govt. is being amended retrospectively. But, this is one of the many cases and certainly not the norm.
3)The government becomes effectively above the law.
Please remember this amendment can again be challenged in the Apex Court - the decision shall be final on the govt. So, it will not be right to make this statement (atleast as of now).
4) There is no finality to SC verdicts (it becomes a situation almost as bad as the Indian arbitration system where no award is seemingly final).
Please refer to answer No. 2.
5)The budget reduced the entire litigation exercise between Vodafone and the tax department to a charade.
Hahaha ...well I can put in this way - the litigating zeal of Vodafone didn't help them much since the Bombay HC judgment was well reasoned.
6) FDI confidence in the court system and government, after the Vodafone decision was welcomed widely.
Now this is something which I agree with you. But, does that mean that laws are to be interpreted keeping in mind the potential FIIs who are keen to invest in India ? If yes, then I would say that China attracts the largest FDI among BRICS inspite of having strict tax laws and implementation of retrospective amendments. To explain further, FIIs look for more on infrastructure, corruption, red tapism, etc. Yes rule of law is also considered but such judgment shall not be hindrance to future FDIs in India. Many investors (both domestic and foreign) had expressed frustration while investing in India, but that was not because of rule of law but because of the aforesaid parameters.
Trust that clarifies.
Best Regards,
Delhi Lawyer.
However, would like to make a point that Hutch's sale wasnt a case of FDI, not even indirectly.Not a single rupee came to India as FDI, instead the profits earned would be going out of India as dividend in vodafone's coffers (that surely would be taxed). Therefore, the point of confidence in FDI is farce.
The basic intent of FDI is to earn profits. If even after paying the taxes (even to the tune of 40%), the returns remains lurcative, the FDI would come.
Kian: Since you have clearly mentioned that it reflects your opinion, however, comparing fiscal statues with criminal statues is like comparing oranges with apples.
1. What is the point of having the court?,2. Why should people bother wasting time fighting the government in court? 3. The government becomes effectively above the law.
Ans- The parliament can enact a laws and can be subjected to pass the test of the judiciary. This is a remarkable feature of our democracy . It is not that parliament has done this every now and then . It has done so only couple of times . In terms of economic law , it has hardly done so. Of course, this has been done more for political appeasement. In this case parliament only has clarified the law and its intention . In any case , whether such intention is legally valid or not shall be subject to judicial scrutiny .
4. There is no finality to SC verdicts (it becomes a situation almost as bad as the Indian arbitration system where no award is seemingly final).
Ans-There is noting called finality of judgment in the law especially in economic laws as delivered in five member bench judgment
5. The budget reduced the entire litigation exercise between Vodafone and the tax department to a charade.
Ans-Litigation is part and partial of business expenses like advisory, advertisement, public relation, staff entertainment etc. How does it matter if VODAFONE win or loose the case?
6. FDI confidence in the court system and government, after the Vodafone decision was welcomed widely.
Ans- Personally, I have worked with many foreigners and let me tell you they are not emotional fool like us. They understand it simply. If there is a tax, that has to be added to the cost of business, if sustainable or close down the business.
6. And countless similar reasons.
Ans- This is a non issue so far anybody “not interested in bring capital from outside India to acquire assets / business in India and not required to pay tax “ WHILE A INDIAN SHALL BE SUBJECTED TO SUCH TAX.
Most of all it shall also create a horrible precedence wherein every government in their budget shall try and redeem their interests.
Worse off in a country with fluctuating power at centre like ours, the next ruling party may decide to do away with the clause to woo investors thus leading the IT department to ( if i can draw an analogy) be the banker in a monopoly game.
I agree with Kianz on the fundamental points - not the Vodafone judgment being drawn into it, but this law at it's very best seems whimsical.
Regards
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