India moves to scrap retrospective tax


Indian politics & policy updates

India took a big step towards repairing its damaged image as an investment destination by moving to scrap a controversial retrospective tax that ensnared multinationals such as Cairn Energy and Vodafone.

Prime minister Narendra Modi’s government on Thursday introduced a bill in parliament to rescind a 2012 tax code provision that had allowed New Delhi to impose retrospective taxes on some foreign investments.

The controversial provision — pushed through parliament after New Delhi lost a $2.9bn tax battle with Vodafone in India’s Supreme Court in 2012 — had severely damaged the country’s reputation as an attractive place to do business.

“We think this is an important time for India to be welcoming of investment,” T.V. Somanathan, India’s finance secretary, told a local television channel after the bill was tabled. “We are very keen to basically get the economy on a faster growth path.”

The move comes as India’s economy is reeling from the impact of the Covid-19 pandemic, with GDP growth contracting 7.2 per cent last year. Even before the virus hit, the economy was in the doldrums, with GDP growth slowing for eight consecutive quarters.

New Delhi’s image has suffered in recent months from its high-profile international tax battle with Cairn Energy over the Scottish energy company’s 2006 corporate restructuring before it listed its Indian operations on the Bombay Stock Exchange.

In December, an international arbitration tribunal ordered New Delhi to pay Cairn $1.7bn as compensation for its’ seizure and sale of a 10 per cent stake in Cairn India against the disputed tax.

New Delhi refused to honour the award, and Cairn last month secured an order from a French court freezing Indian-government owned properties in Paris as a step towards collecting on its debt.

Cairn also filed a lawsuit in a US court seeking to seize aeroplanes of state-owned carrier, Air India, in lieu of payment, and said it had identified more than $70bn worth of other Indian government assets abroad that it could seize in lieu of payment.

Amending the Indian tax code — which will allow a tax refund to Cairn, though without interest — will allow New Delhi to say it has settled the dispute under Indian law, rather than appear to comply with an international arbitration ruling whose jurisdiction it has long contested.

“Those cases that predated the 2012 amendment are now going to be let off the hook, but we are doing this under Indian law,” Somanathan said. 

“There is a principle at stake here — it’s being done through Indian statute. We continue to assert that we have the right to tax but we are choosing to do this. We are not accepting those arbitral awards. We have an objection to such disputes getting adjudicated outside India.” 

Cairn said it had “noted” the proposed legislation and was “monitoring the situation.” Shares in Cairn soared as much as 47 per cent before easing slightly to close at 160p a share, up 27.4 per cent on the day.

Tax experts welcomed the move but questioned why the ruling Bharatiya Janata Party waited so long. The BJP had fiercely criticised the retrospective tax law when the previous Congress party government pushed it through in 2012, and had described it as ‘tax terrorism’.

“It should have been done a while ago, it’s absolutely the right decision and it sends the right signal to investors,” said Nigam Nuggehalli, registrar at the National Law School Bangalore. 

“I’m sure that the immediate prod for them was the fact that they lost their arbitration cases against Vodafone and Cairn,” said Nuggehalli, “any more intransigence on this would really result in loss of face for [the government].” 



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