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Live: [Update: Download judgment] Supreme Court clears Vodafone tax bill, overturns Bombay HC judgment

Breaking: Vodafone has been cleared by the Supreme Court of its $2.4bn tax case, according to authoritative Twitter and early news reports.

[Update: The judgment is available now for download from the SC website or via a copy hosted by Legally India.

@mintlawblog tweeted at 13:40 today:

“Huge win for Vodafone in the Indian Supreme Court. Bombay high court's judgment set aside in totality.”

@mintlawblog added at 14:04 today:

“Supreme Court rules that Vodafone's acquisition of Hutchison's India operations was done through a "bona fide structured FDI"".

Bloomberg reported at 14:03:

The Supreme Court bench has given 2:1 ruling in Vodafone tax case. In its verdict it said that the capital gains tax on foreign deal does not apply and tax authorities have no jurisdiction in this matter. It further said, “in the present case, there is no need to refer matter to the larger bench. Hutchinson is not a ‘fly by night operator’.

The wire service added that Supreme Court ruled that:

Capital gains not applicable on transaction I-T Dept has no jursidiction over sale of offshore assets This is a bonafide FDI transaction into India.

There is no question of TDS being deducted Section 195 does not apply in this case Justice Kapadia said Vodafone need not pay tax

Tax Dept to return Rs 2,500 cr to Vodafone Rs 2,500 cr to be returned to Vodafone with 4% interest Important to have tax policy certainty for investors

I-T had demanded Rs 11,217 crore in tax from Vodafone Look through provisions may be introduced via specific law Hutch-Vodafone structure not a sham.

Mint editor R Sukumar wrote in an editorial that “common sense” had prevailed with the judgment.

Mint reported at 14:07 that Vodafone won the case outright:

Vodafone’s counsel Harish Salve had argued, while explaining to the court the complex web of holdings through which the transaction was effected that, “The transfer of control over downstream companies is not a basis for exercising tax jurisdiction. This is the heart of the matter.”…

Solicitor General Rohinton F. Nariman had argued that the high court, while holding some portion of this deal taxable, had not gone all the way in declaring it to be a facade under which a different transaction was taking place. “What the high court failed to do was come to the logical conclusion from noticing that (HTIL) has given up its management rights in India,” said Nariman. “The heart of the SPA (sale purchase agreement) is handing over of control by HTIL to Vodafone, which translated into legalese means the extinguishment of its rights in and to property in HEL (Hutchison Essar Limited).”

15:01 Mint’s succinct summary of the facts of the case, for those who may have forgotten:

The income tax department had quantified Vodafone’s tax liability at a possible Rs11,217.95 crore in October 2010, based on a direction from the Supreme Court. Vodafone underwent a penalty proceeding as well which said that the telco might have to pay a penalty of Rs. 7,900 crore - the taxable amount. Vodafone had acquired Hutchison’s 67% stake in a joint venture with Essar Group in a May 2007 deal. Indian tax authorities have been interested in the deal since 23 March of that year.

Vodafone International Holdings BV, a Dutch unit of British telecom operator, acquired Hutchison Telecommunications International Ltd’s (HTIL’s) Indian business operations through the sale of a Cayman Islands-based company called CGP Investments (Holdings) Ltd, a unit of HTIL, also a Cayman Islands company. By virtue of this transaction, Vodafone entered the Indian mobile telecommunications market.

HTIL was listed on the Hong Kong and New York Stock Exchange and was owned by Hong Kong-based Hutchison Whampoa Limited that is controlled by billionaire Li Ka-shing.

17:01 The judgment is available now for download here (thank you helpful Legally India commenter PRJ!)

A local copy of the judgment is also hosted by Legally India here.

It is 256 pages long!

Kapadia concluded:

Accordingly, the Civil Appeal stands allowed with no order as to costs. The Department is hereby directed to return the sum of Rs 2,500 crores, which came to be deposited by the appellant in terms of our interim order, with interest at the rate of 4% per annum within two months from today. The interest shall be calculated from the date of withdrawal by the Department from the Registry of the Supreme Court up to the date of payment. The Registry is directed to return the Bank Guarantee given by the appellant within four weeks.

19:45 Legally India is back from all-day ABA conference in Mumbai now, catching up.

Indian Corporate Law blog has a good first-glance summary of the key points of the Vodafone judgment. Good round-up!

19:52 Just catching up on Twitter timelines since coming back from the ABA – it appears that Legally India postcard writer @CourtWitness1 may have been the first to confirm Vodafone’s big win today at 13:30.

Can anyone else beat that?

Saturday, 3am: Must read: The definitive story on the SC Vodafone decision by Mint, and a beautiful infographic to boot.

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