(Re)conciling the Vodafone-India tax dispute: the whirlwind isn't stopping

Trust Bloomberg Tax for the international news and analysis to navigate the complex tax treaty networks and global business regulations.

Amit M. Sachdeva 1 Vaish Associates, New Delhi

Amit M. Sachdeva is a Senior Associate at Vaish Associates, New Delhi

The Vodafone case, decided by the Supreme Court in January 2012, has been the defining decision of recent years, as far as Indian tax law is concerned. The following article examines the case and its influence on Indian tax policy.

The Vodafone Group, (“Vodafone”) headed by Vodafone Group Plc, is one of the largest and most successful conglomerates in the area of telecommunications services in the world.2

Sometime in 2005, Vodafone eyed entering the Indian telecom market.3 This, it successfully did by acquiring the interest of the Hutchison Whampoa Group (“the Hutch group”) in the Indian joint venture of Hutchison Essar Ltd. (“HEL”). The acquisition was, however, made not through a direct slump purchase of business or by acquiring the shares held by the Hutch group in HEL; but by Vodafone acquiring the sole share of a Cayman Islands based company called CGP Investments (Holdings) Ltd. (“CGP”), which share was held by a step-down subsidiary of the Hutch group.

The transaction of sale and purchase of this one share of CGP took place between Cayman Islands-based Hutchison Telecommunications International Ltd. (“HTIL”)4 -- a group company of the Hutch group -- as the seller and Netherlands-based Vodafone International Holdings bv (“VIH”) -- a group company of the Vodafone group -- as the purchaser. The transaction was completed by execution of a Share Purchase Agreement dated 02/11/2007 between HTIL and VIH.

Vodafone's experience with the tax administration in India has since been far from pleasant, to say the least!

There appears to be some lack of clarity in the media and other reports regarding the (chronology of) events leading to the Indian Supreme Court (“the SC”) rendering its much publicised decision in January 2012, holding Vodafone as not liable to withhold tax on the aforesaid transaction. Similarly, there is ambiguity regarding the events subsequent thereto. The latest that is available is that the Government of India and Vodafone are exploring the possibility of amicably resolving their ever-continuing disagreements about Vodafone's tax liability, by way of “conciliation”.

The purpose of this Paper is to recount the relevant events and controversies surrounding the Vodafone-Hutch deal, a quick recap of the key principles laid down by the SC, events leading to the proposal for conciliation and some legal and practical issues which may possibly arise with regard to the conciliation methodology being explored at the moment.

I. Background facts

The Hutch group invested for the first time in India in the year 1992 in a joint venture company called Hutchison Max Telecom Ltd--later renamed as “HEL”. Between 1998 and 2004, HEL came to be owned by CGP, which was, in turn, owned by HTIL, through two British Virgin Islands and one Cayman Islands companies.5

By the end of 2006, the Hutch group, through a maze of subsidiaries, controlled 67 percent interest in HEL; the remaining 33 percent being held by the Essar group.

In December 2006, Vodafone, through Vodafone Group Plc, made a non-binding open offer to the Hutch group for USD 11.055 billion, being the enterprise value of Hutch's 67 percent interest in HEL. After an initial revision, the offer was again revised to USD 11.076 billion, which was accepted and ultimately resulted in the execution of the Share Purchase Agreement dated 02/11/2007, under the terms of which HTIL agreed to sell the single share of CGP held by one of its BVI subsidiaries to VIH.

The SPA was acted upon by the parties and the single share of CGP was sold by the Hutch group to VIH and the consideration in lieu thereof was paid by VIH to HTIL, without VIH withholding tax in relation thereto. Before acting upon the SPA, the parties also sought necessary approvals from the Foreign Investment Promotion Board (“FIPB”) which, after enquiries and investigations spanning over almost three months, granted the approval on 05/07/2007.

This transaction completed pursuant to SPA dated 02/11/2007 became the subject matter of the dispute between Vodafone and the Indian tax authorities.

The view of the Indian tax authorities was that the aforesaid transaction of sale of the share of CGP was taxable in India inasmuch as it resulted, according to the Indian Revenue, in the transfer of Hutch's interest in HEL to Vodafone and that consequently VIH, being the purchaser, was required to withhold tax on capital gains arising to Hutch.

On this reasoning, the Indian tax authorities issued a notice on 09/19/2007 under sections 201(1) and 201(1A) of the Indian Income-tax Act, 1961, (“ITA”), seeking an explanation from VIH for failing to withhold tax on the above transaction.

This show cause notice was challenged by VIH before the Bombay High Court in a writ petition: an extraordinary remedy available to a person against illegal assumption of jurisdiction by an authority. The writ jurisdiction vested in the High Courts is basically discretionary and equitable6 and the Courts in India exercise this jurisdiction only where the infringement of legal rights is clear, does not require investigation into the facts7 and there exists no equally efficacious alternative remedy.8

By an order passed on 12/03/2008,9 the Bombay High Court declined to exercise its writ jurisdiction at the preliminary stage of issue of the show cause notice. Vodafone's appeal to the SC against the order passed by the Bombay High Court was also dismissed10 and the SC instead directed the assessment officer to determine and adjudicate VIH's objections to the jurisdiction of the Indian tax authorities. However, considering the seriousness of the issue as well as the quantum of tax involved, the SC directed the High Court to entertain the writ petition in the event that the assessment officer were to uphold his jurisdiction to tax the transaction in question.

Pursuant to the direction issued by the SC, the assessment officer passed an order under ITA section 201(1)/(1A) on 05/31/2010, whereby the assessment officer:

(a) upheld the jurisdiction of the Indian tax authorities to tax the transaction in question;

(b) held VIH to have defaulted in its obligation to withhold tax;

(c) directed VIH to pay the amount representing the capital gains tax on the transaction and interest thereon.


Separately, the tax authorities also passed a penalty order against VIH for failing to withhold tax.

Against the order dated 05/31/2010, VIH filed another writ petition, which was dismissed by the Bombay High Court on merits on 09/08/2010;11 the High Court thereby upholding the jurisdiction of the Indian tax authorities to tax the transaction in question.

II. The Supreme Court judgement

This order of the High Court was challenged in an appeal before the SC, which culminated in passing of the elaborate and path breaking judgment12 by a three-judge bench of the SC on 01/20/2012. In its 120-page judgment, the SC laid down and reiterated several key principles concerning the taxability of indirect transfer(s) as well as on other legal propositions.

An analysis, or even a mere enumeration, of each of those principles is beyond the scope of this paper. However, for the sake of completeness and in order to appreciate the subsequent events, the following points merit a mention:

(a) tax planning within the framework of law, not involving colorable devices, dubious methods and subterfuges, is legitimate and permissible;

(b) the “separate-entity” principle--a company is a separate person in the eyes of the law--applies also in the context of parent-subsidiary relationship and this principle must be respected, irrespective of the actual degree of independence. However, where an indirect transfer is effected through abuse of organisation form/ legal form and without reasonable business purpose, which results in tax avoidance, then the legal form of the arrangement may be disregarded, having regard to all the facts and circumstances concerning the transaction. In such a case, the corporate veil can be lifted and substance may be given precedence over form;

(c) “holding structures” are a common practice and are recognised both in corporate and tax laws. Therefore, they are entitled to respect and can be disregarded only where the transaction is a sham or results in fiscal nullity;

(d) whether a transaction is a sham and whether a holding structure is an abuse of legal form and devoid of business purpose is to be regarded by applying the “look at” test, considering all aspects of the matter;

(e) ITA section 9(1)(i) which deems “all income accruing or arising whether directly or indirectly … through the transfer of a capital asset situate[d] in India” as accruing or arising in India and, consequently, taxable in India is not a “look through” provision and that this section applies only to “transfer of a capital asset situated in India” and not to “indirect transfer of capital asset situated in India”;

(f) the transfer of shares result in the transfer of the company, but not the assets owned by the company; and

(g) the situs of the shares is where the company is incorporated and where its shares can be transferred and not where the “underlying assets are situated”.


On the basis of the above reasoning, the SC held that the Indian income tax authorities had no jurisdiction to tax the transaction of sale of the CGP share by HTIL to VIH. The SC also directed the Revenue Department to refund along with interest @ 4 percent per annum the sum of INR 2500 crores (approx. USD 560 million) which had been deposited by VIH in terms of an interim order passed by the SC.

III. Events post-SC judgment

Rather than following the directions of the SC and refunding the tax collected, the Government, in an unsuccessful bid, filed a petition on 02/17/2013 requesting the SC to review its judgment. The review petition was however dismissed by the SC on 03/20/2013.

In a similar counter-intuitive move, the Ministry of Finance mooted proposals to: (a) retrospectively amend the relevant ITA provisions so as to make indirect transfer of assets resulting from the sale of shares of non-resident companies taxable in India; and, (b) validate the proceedings, tax levied and collected from Vodafone, in the Finance Bill, 2012, presented to the Parliament on 03/16/2012.

Interestingly, the SC had given the Government a period of two months from the date of its judgment (i.e., 01/20/2012) to refund the tax already collected. The Budget was tabled before the date the two-month period was to elapse.

The Budget, inter alia, proposed the insertion of the following “clarificatory” Explanations in ITA section 9,13 as also amendments in the definition of “capital asset” and “transfer”:  

“Explanation 4.--For the removal of doubts, it is hereby clarified that the expression “through” shall mean and include and shall be deemed to have always meant and included “by means of”, “in consequence of” or “by reason of”

“Explanation 5.--For the removal of doubts, it is hereby clarified that an asset or a capital asset being any share or interest in a company or entity registered or incorporated outside India shall be deemed to be and shall always be deemed to have been situated in India, if the share or interest derives, directly or indirectly, its value substantially from the assets located in India.”  



This hostile adrenaline rush shown by the Indian Finance Ministry was seen with unpleasant surprise by multinational business enterprises, tax advisors and the international trade community.14

The unwelcoming mood surfacing from various corners notwithstanding, the Finance Act, 2012, was passed by both the Houses of the Indian Parliament and signed by the President of India on 05/28/2012. With the enactment of the Finance Act, 2012 the aforementioned amendments became part of the statute book.

However, in order to ward off any doubts that the retrospective amendments brought about by the Finance Act 2012 may result in “reassessment” of concluded transactions, the CBDT issued an administrative Clarification,15 clarifying that no reassessment notices would be issued in respect of taxpayers and transactions where final scrutiny assessment orders had been passed on or before 04/01/2012 and that the amended law would not be applicable to such assessees.

Not only did the Finance Act 2012 retrospectively make indirect transfer of assets (resulting from transfer of shares) taxable in India, but also enacted section 119, in terms of which notices issued, taxes levied, demanded, assessed, collected or recovered in respect of capital gains arising from the indirect transfer of capital assets were validated. This amendment was, it is thought,16 brought about to validate the demand of tax, interest and penalty aggregating roughly to INR 20,000 crores raised on VIH, as also for retention of INR 2500 crores deposited by VIH in terms of the interim order passed by the SC. This provision appears to be ex-facie confiscatory and contrary to the Constitution of India, which has been interpreted as prohibiting confiscatory legislations.17

The Attorney General for India has however opined that the enforcement of demand of tax, interest and penalty would be permissible in view of section 119 of the Finance Act 2012.

IV. Constitution of the Expert Committee and its recommendations

One of the other provisions to be enacted in the Finance Act 2012 was the insertion of general anti-avoidance rules in ITA. This proposal was met with severe criticism and opposition from the industry. In view of the representations received by the Indian Prime Minister from different stakeholders, an Expert Committee (“EC”), headed by Dr. Parthasarathi Shome, was constituted on 07/17/2012, to examine the feasibility of implementing GAAR in India.

The enactment of the Finance Act, 2012, was shortly followed by a change in incumbency of the Finance Ministry. On 07/22/2012, the then Finance Minister, Mr. Pranab Mukherjee, swore in as the President of India. The Finance Ministry was thereafter assigned to Mr. P. Chidambaram on 07/31/2012, who continues to be Finance Minister till date.

With the change in the incumbency, the vigour and rush with which the Indian authorities were approaching the Vodafone issue saw a sharp decline. Rather than acting upon the retrospective amendments in haste, and in view of the strong opposition to the retrospective operation of the amendments, the EC was, on 09/01/2012, given an additional mandate to “examine the applicability of the amendment to (sic.) taxation of non-resident transfer of assets where the underlying asset is in India.”

The EC submitted its Draft Report on 10/01/2012, which was published by the Ministry of Finance for public consultation on 10/09/2012. The Report was well-received by various stakeholders and, with few modifications, the Final Report was submitted on 10/31/2012. The main recommendations contained in the EC Final Report are summarised as follows:

(a) retrospective amendments are desirable in order to correct apparent mistakes/anomalies, remove technical and procedural defects and protect the tax base from “highly abusive tax planning”. However, retrospective amendments ought not be enacted to expand the tax base;

(b) the amendments brought about by the Finance Act, 2012 were not “clarificatory” in nature, but levied, from a back date, tax on indirect transfer(s);

(c) such provisions ought to have prospective, and not retrospective, effect;

(d) even if the provisions are to be given retrospective effect, the liability must be fastened upon the “transferor” or the payee, who, in fact and in law, earns the capital gains and not upon the “transferee” or the payer by way of withholding tax obligations;

(e) at the most, only the principal amount representing “tax” may be levied on such transactions and the levy of interest or penalty is not warranted;

(f) the amendments need to be clearer and must define certain terms and threshold requirements, such as minimum ownership requirements and valuation methodology for determining whether the value of the shares is “substantially” derived from the assets situated in India and that only proportionate or pro rata tax, commensurate with the proportion of the value/ownership, may be levied; and

(g) in cases of conflict between retrospective amendments and the provisions of a tax treaty entered into by India with another country, the latter should be given precedence.


V. Recourse to BIT and possible conciliation

Earlier, when the Finance Ministry had tabled the Finance Bill, 2012 seeking to overrule the SC judgment and relegate Vodafone to a “paper-decree-holder”, VIH took recourse to the Indo-Netherlands Bilateral Investment Promotion and Protection Treaty (“the Treaty”)18 and served the Government of India with the Notice of Dispute on 04/17/2012.19 In the Notice, VIH averred violation of the legal protection conferred and guaranteed to VIH, being an “investor” under Article 1(d) of the Treaty. In particular, VIH pointed out that under the Treaty, India was obliged to accord fair and equal treatment, provide protection and security, fulfill the legitimate expectations of the investors and not take steps to indirectly expropriate the investment.

The Government of India, with its recent adverse BIT arbitral award in the case of White Industries,20 sought to dislodge the applicability of the Treaty on tenuous grounds that: (a) the Treaty did not govern tax disputes and (b) the deal was completed by execution of the Share Purchase Agreement in Cayman Islands and not in the Netherlands, for which reason the Treaty, India claimed, was not applicable.21

Under the Treaty, like many other BITs, service of Notice of Dispute with a view to amicably settle the dispute(s) through negotiations is a condition precedent to resorting to conciliation under Article 9(2) of the Treaty. Only in the event that the parties to the dispute do not, within one month, agree to conciliation or where the conciliation proceedings are unsuccessfully terminated, “the dispute may be referred to arbitration”.

Despite the recommendations of the Shome Committee and the assurances signaled by the new Finance Minister that the tax authorities would take no “rash action”22 against VIH, sometime in the first quarter of 2013, VIH was issued reminder notices for payment of demand.23 In response to these notices, VIH proposed a non-binding conciliation of the tax dispute.

VI. Government's shifting stands

This proposal was however rejected by the then Law Minister on 04/05/2013, on the ground of absence of requisite authority under the Indian laws to do so.24 The Attorney General endorsed this view.

However, subsequently, with the change in incumbency of the Law Ministry, the successor Law Minister, Mr. Kapil Sibal, indicated the Government's intent to proceed with conciliation. The “legislative authorisation” vacuum was proposed to be made up by way of a subsequent amendment ratifying the conciliation process, in the event of it being successful. This mechanism also has been surprisingly opined by the Attorney General as permissible.25

On 06/04/2013, the Cabinet Committee on Economic Affairs approved a proposal for a non-binding conciliation between the Government of India and VIH for resolution of their long pending dispute. The Cabinet however clarified that the proposal for conciliation was to be administered under the Indian conciliation law. The outcome of this non-binding conciliation will be, it is proposed, taken back and presented before the Parliament for approval by way of an amendment. Cabinet's proposal has been followed by the Department of Revenue formally writing to VIH on 06/15/2013.

VIH however continues to weigh its options, including thinking about and insisting on the conciliation process to be administered under the Treaty, which provides for UNCITRAL Rules.

VII. Unanswered questions

This turn of events, however, gives rise to several interesting and stimulating questions. In particular, it is unclear whether VIH would accept the Government's proposal for conciliation being administered under the Indian Arbitration and Conciliation Act, 1996 (“A&C Act”). Assuming that the parties were to agree to conciliation under the Indian law, it is unclear, for the reasons that follow, whether a tax dispute is arbitrable or conciliable under the A&C Act:

Part III of the A&C Act deals with “conciliation”. Section 61 of the A&C Act provides for “application and scope” of Part III and reads as under:  

“61. Application and scope.

1. Save as otherwise provided by any law for the time being in force and unless the parties have otherwise agreed, this Part shall apply to conciliation of disputes arising out of legal relationship, whether contractual or not and to all proceedings relating thereto.

2. This Part shall not apply where by virtue of any law for the time being in force certain disputes may not be submitted to conciliation.”  



Clearly, ITA does not provide for conciliation as a mechanism for dispute resolution. Further, there is no guidance available under the A&C Act provided for the meaning of the words “disputes arising out of legal relationship, whether contractual or not” used in section 61 thereof. There is also no direct case law on the point. However, an identical expression has been employed in A&C Act section 7, which deals with the scope of arbitration while it defines the term “arbitration agreement” as “an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.”

It is in this context that the Indian courts have read the requirement of “arbitrability” as a precondition to reference of any dispute to arbitration.

The law relating to “arbitrability” in India has been succinctly explained by the SC in the case of Booz Allen & Hamilton Inc v. SBI Home Finance Limited26,where the SC held that “arbitral tribunals are private forums” and that “[a]djudication of certain categories of proceedings [is] reserved by the legislature exclusively for public forums as a matter of policy.” As an “example[] of non-arbitrable disputes”27, the SC referred to those disputes for the resolution of which “specified courts are conferred jurisdiction”28 The SC further held that rights in rem cannot be the subject matter of determination by arbitration.

Similarly, in Gujarat UrjaVikas Nigam Ltd v. Essar Power Ltd,29 it was held that the statutory mechanism provided under the law cannot be allowed to be bypassed by the private contract between the parties. Further, the Delhi High Court in Union of India v. Reliance Industries Ltd30 observed that “the question of arbitrability of the claim which is a larger question affecting public policy of state should be determined by applying laws of India”.

Inasmuch as the income tax law creates “public” rights and obligations which are in the nature of rights in rem, for the resolution of disputes pertaining to which specified courts have been set up under the ITA, which cannot be permitted to be bypassed on account of the prescription contained in the Constitution Article 265,31 a tax dispute would, under the A&C Act in its present form, be non-arbitrable. In fact, the question arose more directly before the Himachal Pradesh High Court in the old case of Yash Pal Garg v. Chief Conservator of Forests,32 where the Court held that “a question of levy of tax […] cannot be a matter which may be decided by the arbitrator.” In the case of Titagarh Paper Mills Ltd v. Orissa SEB,33 the SC declined the claimant's request for reference to arbitration in respect of a dispute relating to surcharge leviable under Electricity Supply Act 1948.

For the foregoing reasons, there remain serious doubts on whether the tax dispute between Vodafone and the Government of India can be the subject matter of conciliation.

Even if the “conciliability” question is affirmatively answered, the following issues would still be required to be resolved:

(a) whether any tailor-made conciliation award (passed in favour of VIH) would violate the principle of equality guaranteed under Article 14 of the Constitution of India and whether it would set a precedent for other non-resident taxpayers;

(b) whether a conciliation mechanism invoked in the absence of legal and statutory authorisation can be “validated” by way of subsequent (“retrospective?”) legislation by the Parliament;

(c) whether conciliation would be a “package deal” and apply to tax, interest and penalty or whether its scope will have to be restricted only to interest and penalty;

(d) whether, in the case of a failed conciliation under the A&C Act, VIH would be entitled to escalate to arbitration in terms of Article 9(3) of the Treaty or would a (second) conciliation under the Treaty be mandatory; and

(e) whether, in the case of a failed conciliation, VIH would be entitled to still challenge the constitutional validity of ITA section 119, inasmuch as attempting conciliation once may be viewed as an implied acceptance of the legality of the provision validating the tax demand against VIH.


VIII. Conclusions

The finality in the resolution of Vodafone's almost-seven-year old tax dispute still appears to be far in the future. The parties are likely to take strong positions and the conciliators will have to face many problems to reach a settlement agreeable to both VIH and the Government. Apparently, there is, at present, no time frame specified for the conciliators to complete the conciliation process. The time it may take to initiate the process, arrive at the settlement and formally execute the conciliation award is likely to be of the essence, particularly in the wake of the upcoming General Elections scheduled in first half of 2014, which, to add to Vodafone's woes, may see a change in the ruling party, which may repudiate this authorisation-less ad hoc mechanism for resolving an otherwise non-conciliable tax dispute.

Therefore, all the intriguing questions and issues highlighted above must secure clear and categorical ex anteanswers from the Government, lest Vodafone should be entangled in another never-ending litigation, albeit about implementation of the conciliation award, hinged on yet another retrospective legislation.

The advice to the Government would be: introspect, don't retrospect!

Amit M. Sachdeva is a Senior Associate at Vaish Associates, New Delhi. He can be contacted at mask.sachdeva@gmail.com.


1 Senior Associate, Vaish Associates, New Delhi. LLM, London School of Economics (LSE). The author acknowledges the assistance of Mr Gaurav Ishpuniani and Mr Madhur Anand of Vaish Associates.

2 https://www.vodafone.in/documents/pdfs/pressreleases/pr_1168.pdf, last accessed on 07/04/2013.

3 Vodafone first entered India on 10/28/2005, when it agreed to acquire 5.61 percent shareholding in Bharti Televentures Ltd and 4.39 percent shareholding in Bharti Enterprises Ltd.

4 HTIL had a wholly owned subsidiary called HTI (Cayman) Holdings Ltd in Cayman Islands, which had a wholly owned subsidiary Amber International Holdings bv in British Virgin Islands (BVI), which, in turn, had another wholly owned BVI subsidiary, HTI (BVI) Holdings Ltd, which finally held the sole share of CGP.

5 Ibid.

6 See, K.D. Sharma v. Steel Authority of India Ltd.: (2008) 12 SCC 481; Chandra Sankla v. Vikram Cement: (2008) 14 SCC 58; G. Veerappa Pillai, Proprietor, Sathi Vilas Bus Service v. Raman and Raman Ltd: 1952 SCR 583, Secretary, ONGC Ltd. v. VU Warrier: (2005) 5 SCC 245.

7 Sadhu Ram v. Delhi Transport Corporation MANU/SC/0253/1983; Haryana State Electricity Board v. Suresh: 1999 (1) KLJ 851; Hari Vishnu Kamath v. Syed Ahmed Ishaque: [1955] 1 SCR 1104, Nagendra Nath Bora v. The Commissioner of Hills: [1958] 1 SCR 1240; Kaushalya Devi v. Bachittar Singh: AIR 1960 SC 1168; Syed Yakoob v. K.S. Radhakrishnan: AIR 1964 SC 477

8 Rashid Ahmed v. Municipal Board, Kairana: [1950] SCR 566; K.S. Rashid v. The Income-tax Investigation Commission [1954] SCR 739; Union of India (UOI) v. T.R. Varma: AIR 1957 SC 882.

9 [2009] 311 ITR 46 (Bom.)

10 SLP No. 464 of 2009 rendered on 23.01.2009

11 [2010] 329 ITR 126 (Bom).

12 [2012] 341 ITR 1 (SC)

13 Far from the Vodafone controversy, the Ministry of Finance also drafted the Direct Taxes Code, the first version of which was made public in August 2009. The August 2009 version did not provide for taxation of indirect transfer of capital assets. The Direct Taxes Code was revised and the Direct Taxes Code Bill, 2010, was drafted after receiving comments on the earlier version, in which section 5(4)(g) provided for taxation of indirect transfer of capital asset as a result of transfer of shares. DTC Bill awaits enactment.

14 http://www.itatonline.org/articles_new/index.php/why-the-vodafone-retrospective-law-will-ruin-india-harish-salve/, last accessed on 07/03/2013.

15 CBDT Clarification dated 05/29/2012, bearing F. No. 500/111 12009-FTD-l (Pt.). With regard to the Vodafonetransaction, it was specifically provided that “[h]owever, assessment or any other orders which stand validated due to the said clarificatory amendments in the Finance Act 2012 would of course be enforced.”

16 http://articles.economictimes.indiatimes.com/2012/aug/10, last accessed on 07/04/2013

17 State of Bihar v. Maharajadhiraja Sir Kameshwar Singh: [1952] 1 SCR 889; Corporation of Calcutta v. Liberty Cinema: AIR 1965 SC 1107; Bisambhar Dayal Chandra Mohan v. State of UP: [1982] 1 SCR 1137

18 India, as on05/06/2013, has a strong investment treaty network and has entered into BITs with 82 countries--almost all of India's trading partners. See, http://pib.nic.in/newsite/erelease.aspx?relid=95593, last accessed on07/01/2013.

19 http://www.vodafone.com/content/index/media/group_press_releases/2012/ bit.html, last accessed on07/02/2013.

20 Award dated11/30/2011 in the matter of UNCITRAL Arbitration between White Industries Australia Ltd v. The Republic of India, available at http://www.italaw.com/sites/default/files/case-documents/ita0906.pdf, last accessed on07/04/2013.

21 http://profit.ndtv.com/news/corporates/article-inter-ministerial-group-to-examine-vodafones-dispute-notice-302616

22 http://articles.economictimes.indiatimes.com/2012-09-03/news, last accessed on 03.07.2013.

23 http://www.indianexpress.com/news/revenue-department-sends-vodafone-tax-reminder/1055142, last accessed on 07/04/2013.

24 http://www.indianexpress.com/news/law-ministry-rejects-vodafones-proposal-to-reconcile-tax-dispute/1098428/, last accessed on 07/04/2013.

25 http://www.thehindu.com/business/Industry/vodafone-offer-law-ministry-makes-uturn/article4715088.ece, last accessed on 07/04/2013.

26 (2011) 5 SCC 532

27 Ibid at p. 546

28 Ibid at p. 547

29 (2008) 4 SCC 755

30 OMP No. 46 of 2013 (rendered on 03/22/2013)

31 Under Article 265 of the Constitution, “no tax shall be levied or collected except by authority of law.” Thus, the quantum of tax which can be imposed has to be determined “by authority of law”. Similarly, any alteration thereof must be preceded by “authority of law”.

32 1977 Shim LC 44 (HP)

33 (1975) 2 SCC 436

Request International Tax