HC dismisses Vodafone plea against tax dept on Hutch deal

Mumbai: The Bombay High Court today dismissed Vodafone International's petition challenging an Income Tax (I-T) department order that demanded Rs12,000 crore in liabilities arising out of the company's $11 billion takeover of Hutchison Telecom, reports PTI.

A division bench held that the I-T department had the jurisdiction to tax the transaction.

It, however, gave liberty to Vodafone to argue before the tax department that no penalty should be imposed as they genuinely believed they had no liability to deduct tax at source.

The department held Vodafone liable for not deducting tax at source from payment made to Hutchison and claimed around Rs12,000 crore in tax and penalty in the 2007 deal.

"The transaction has sufficient nexus with India and the I-T has the jurisdiction to levy tax on the transaction," Justice Dhananjay Chandrachud and Justice J P Deodhar noted while delivering the verdict.

The court refused to stay its order to enable the petitioners file an appeal and allowed the proceedings to continue before the tax department. The judges, however, said that the department would not give its order until eight weeks.

Justice Chandrachud pronounced the operative part of the verdict in the Bombay High Court while Justice Deodhar, currently on an assignment at Nagpur bench, was at the other end of the video conference link.

The question before the high court was whether Income Tax (I-T) department can ask a foreign company to pay tax in India if it takes over another foreign entity that owns an Indian subsidiary, and particularly so, if the deal is made outside India?

The judgement is considered in legal circles as a setback to the companies who are looking forward to takeover deals involving Indian companies.

While the I-T contended that the transaction was liable for tax payment in India, Vodafone International Holdings contended that both the seller and buyer were foreign companies and that the deal was made outside India.

Vodafone submitted that in the past, similar transactions have not been held eligible to taxation in India and that the Indian revenue authority has been stating through the media that the transaction in issue is a "test case".

The I-T affidavit said that Hutchison Telecommunications International Ltd (HTIL), through its investments in India, had made substantial gains which were chargeable to tax under the provisions of the Income Tax Act 1961.

HTIL held 66.98% direct and indirect interest in Vodafone Essar Ltd (previously known as Hutchison Essar Ltd), which had telecom licenses to operate across India under the brand name Vodafone (formerly Hutch).

The I-T department said it was correct in holding that Vodafone was an assessee in default as it had failed to deduct tax at source from over $11.2 billion payment made to HTIL on 8 May, 2007.

The revenue department had sent an advisory through a letter dated 23 March, 2007, communicating to Hutchison Essar Ltd and through them to Vodafone International that the transaction was liable to tax in India, N K Govila, assistant director of Income Tax contended in an affidavit.

Vodafone, challenging the I-T letter, contended in its petition that there has been no transfer of any capital asset located in India since the share capital acquired by it was of a foreign company registered in Cayman Islands (i.e. HTIL).

Moreover, it said, the transaction was negotiated and completed outside India.

Vodafone argued that the jurisdiction of the Income Tax department was not extra-territorial and as such cannot be extended to encompass foreign entities transacting in assets outside India.


After initial enthusiasm, developers shy away from affordable housing

The global recession had prompted developers to foray into the affordable housing segment. But low margins and the subsequent economic recovery has made the industry shift its focus to high-end projects

During the recession, developers were gung-ho over 'affordable housing' projects, with plans for low-cost housing sprouting faster than mushrooms after a cloudburst.

But as soon as there were signs of the global economy recovering, the focus promptly shifted to the luxury segment, with plans to meet the housing needs of the low- and middle-income groups being put on the backburner.

Pankaj Kapoor, founder and managing director, Liases Foras, a real-estate rating and research company, told Moneylife, "It was a seasonal gimmick played by all the developers. In 2008, there was a scenario where luxury was in fashion. Developers were making high-end flats but they were not finding buyers and soon they found themselves with acute shortage of money and a surfeit of debt traps. All builders then went gaga over affordable housing; but that has also faded over time. In less than six months, everybody changed their plans and moved to the luxury segment."

The affordable housing segment was in vogue when the global meltdown put a question mark on the real estate sector worldwide. As the effects of global recession sneaked into India in 2008 - creating uncertainties over jobs in the country - people became cautious about spending, and were reluctant to invest large sums in buying homes. The situation was exacerbated by falling investor confidence, and from their peak levels in 2007, real estate prices came crashing down by 30%-40% during 2009 and many premium houses could not be sold. At this time, affordable housing was all the rage.

Unitech Ltd was the first to take the affordable housing plunge. Sandeep Reddy, former analyst with Kotak Institutional Equities and co-founder of GrOffr.com, a real estate website for group buying, said, "Unitech was the first to employ the strategy of lowering the unit size and reducing the price, resulting in creation of the 'affordable' segment. Most developers followed suit."

For example, Unitech had initially launched "Grande" as an ultra-luxury residential project in Noida, but re-launched it with a major portion converted into smaller flats available at discounted rates.

However, almost all developers followed the herd, right from Tata Housing to Delhi-based Omaxe, but some failed to stick to their plans.

In September 2009, Hiranandani Constructions had announced plans to launch its first mid-income housing project by the year-end. However, though Hiranandani had mentioned at that time that the launches would depend on getting approvals from the government and other authorities, the plans have remained on paper.

In November 2009, another developer, DLF, was said to be planning to build one lakh affordable houses that would cost less than Rs20 lakh in major cities across the country. Nine months later, DLF has said that it might withdraw from the affordable housing sector due to low margins under the scheme, according to media reports. 

The company, at that time, had reported a 25% rise in net debt to Rs18,463 crore. A DLF official, however, refused to comment, citing lack of information. Incidentally, in May this year, DLF was said to be planning to launch a high-end housing project in Lower Parel (central Mumbai), according to reports.

Though developers are staying away from the affordable segment, the demand for such housing continues to rise. According to the Planning Commission, the urban housing shortage in March 2007 was about 24.71 million units and is estimated to increase to 26.5 million by 2012. About 99% of this shortfall is in housing for economically weaker sections and low-income groups.

Approximately 42.8 million persons (15.2% of India's urban population) live in slums with inadequate sanitary and drinking water facilities. The proportion of population living in slums is even higher in metropolitan cities. Though the state government has taken steps like the Maharashtra Housing & Area Development Authority (MHADA) schemes and various Slum Rehabilitation Schemes, the plans have been plagued with controversy.

This means that private players need to play a bigger role to meet the housing needs of billions of people in the low- and middle-income groups. According to Mr Reddy, developers need to change their mindset to a 'manufacturing' one if they want to tap the affordable housing segment. "Today developers focus on maximising profit. They need to change that to a factory or manufacturing mindset considering the profit margin on affordable housing sector is low. Besides, delay in completing affordable housing projects would mean losses. Hence, complying with requirements of manufacturing can lead to the success of these projects," Mr Reddy told Moneylife.

However, Mr Kapoor is hopeful that developers would soon turn to the affordable housing segment. He said, "Sooner or later, developers have to come back to the affordable segment."




7 years ago

What I see here is an opportunity for some serious player to enter this affordable housing segment and exploit it to the fullest. Different strokes for different folks, so ,why crib that builders have gone back to luxury segment?

RBI may hike rate by 25 bps in credit policy: JP Morgan

Mumbai: The Reserve Bank of India (RBI) is expected to hike rate by 25 basis points (bps) in the next credit policy, reports PTI quoting a top market strategist of JP Morgan.

"Currently the RBI is being very considerate in its response to monetary policy, in its response to the high level of cost-push inflation. We do expect the repo rate to go up by 25 bps at the next meeting but that is a very modest increase, relative to India's nominal gross domestic product (GDP) growth," JP Morgan's chief Asian and emerging market strategist Adrian Mowat told reporters here.

Mr Mowat said that the Indian economy should see robust growth and given this, its premium valuations are justified.

"India offers a good growth story. We need to put India's valuations into a global context. I find Indian valuations look perfectly appropriate relative to the growth opportunities within the markets," Mr Mowat said.

We are also seeing strong foreign institutional inflows (FII) inflows because they find Indian market offers good growth and the valuations are acceptable, he said.

Mr Mowat pointed out that stocks of banks, real estate, IT sector and capital goods sector will perform better.


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