Uncertainly of law is often been a matter of debate and discussion but it is for the first time ever that the Supreme Court has emphasised with a conviction for certainty and stability in the tax laws in their decision in ITA No. 733/2012 in Vodafone International Holdings B.V. vs. Union of India and others delivered on 20.01.2012. In their conclusion the Apex Court bundled-up the followed golden chance and opportunity for the Government: (Para 91)
“91. FDI flows towards location with a strong governance infrastructure which includes enactment of laws and how well the legal system works. Certainty is integral to rule of law. Certainty and stability form the basic foundation of any fiscal system. Tax policy certainty is crucial for taxpayers (including foreign investors) to make rational economic choices in the most efficient manner. Legal doctrines like “Limitation of Benefits” and “look through” are matters of policy. It is for the Government of the day to have them incorporated in the Treaties and in the laws so as to avoid conflicting views. Investors should know where they stand. It also helps the tax administration in enforcing the provisions of the taxing laws. As stated above, the Hutchison structure has existed since 1994. According to the details submitted on behalf of the appellant, we find that from 2002-03 to 2010-11 the Group has contributed an amount of `20,242 crores towards direct and indirect taxes on its business operations in India.” (Unquote)
The Supreme Court in their decision somehow complained about lack of certainty and stability of tax laws and hopefully this might now influence the makers of law to shy away from retrospective amendments and discipline themselves. Vodafone decision is therefore going to be turning point in the history of Indian taxation. In the true sense the judgement is a reminder in so far as to increase the international tax base it may be better desirable to enforce transfer pricing regulations based on sound arms length principle rather than outreaching other jurisdictions.
But at the same time the judgement is bit disturbing too as it volunteers to check out on not yet so framed Direct Taxes Code Draft Bill supposedly empowering the Income Tax Officer to outreach their jurisdiction in Vodafone like bonafide cases which may be a kind of overdoing on the subject.
Instead it is desirable to bring clarity in the Direct Taxes Code Bill to insert in section 47 a clause to the effect that any transfer of shares among two non residents in overseas jurisdiction would not be considered as transfer in India. This would bring advantage to our country forthright and perhaps bring India in superior position over china and the rest of the world in Foreign Direct Investment flows. So here is an opportunity for India. Any effort made to neutralise the effect of this decision by bringing retrospective legislation would be damaging and may have long term adverse implications for the country. Rather it must be an effort of the present Government to bring an amendment in the Direct Taxes Code Bill to bring certainty on the non taxability of any transaction of the kind as in Vodafone case.
Even Justice K S Radhakrishnan in his separate judgement underlined the following key words:
“174. Section 9 has no “look through provision” and such a provision cannot be brought through construction or interpretation of a word ‘through’ in Section 9. In any view, “look through provision” will not shift the situs of an asset from one country to another. Shifting of situs can be done only by express legislation.”
Thus according to the Court “look through provision” will not shift the situs of an asset per se from one country to another. Furthermore any amendment in section 9 of the order of look through provision will always find practical difficulty in their application and would be susceptible to misuse so it must be avoided. And further to increase the international tax base the revenue therefore must concentrate on transfer pricing mechanism and enforce arms length rule application in international transactions.