Documente Academic
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In This Issue
page
2 : Intellectual Property
3 : Foreign Exchange
6 : Infrastructure
6 : Competition Law
10 : Litigation
10 : Taxation
Inter alia…is a legal newsletter published each quarter by AZB & Partners for a select list
of clients and colleagues. Each issue aims to provide a snapshot of the recent legal devel-
opments in certain critical areas: infrastructure, foreign direct investment, securities law,
exchange control regulations, corporate law, media and entertainment, intellectual prop-
erty and banking. We hope you will find the content informative and useful. If you have
any questions or comments, please email us at: editor.interalia@azbpartners.com or call
AZB & Partners.
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Intellectual Property
AZB & PARTNERS
ADVOCATES & SOLICITORS
v The Indian Copyright Board (‘Copyright Board’) has on August 25, 2010, in the case of Mu-
sic Broadcast Pvt. Ltd. & Ors. v. Phonographic Performance Ltd.1, standardized the royalty rate
for broadcasting of sound recordings on private FM radio stations payable by them to Phono-
graphic Performance Ltd. (‘PPL’). This has settled the long standing controversy on this issue.
v Royalty rates for broadcast
of sound recordings
The Copyright Board directed the Registrar of Copyrights to grant to the radio stations separate
standardised licenses for communicating the work (sound recordings in the repertoire) to the public, on the
condition that 2% of the net advertisement earnings of each FM radio station (accruing from the
v Trade Marks (Amendment)
Bill, 2009 passed by Rajya radio business only) must be set apart for pro rata distribution to all music providers (including
Sabha PPL) in proportion to the music provided by the respective music providers and broadcast by
the radio stations. The Copyright Board also directed each of the FM radio stations to furnish,
within a week of grant of license by the Registrar of Copyrights, a bank guarantee of ¤ 10,000 in
favour of PPL. The license granted by the Registrar of Copyrights will expire on September 30,
2020.
v In August 2010, the Rajya Sabha (Upper House of the Parliament) passed the Trade Marks
(Amendment) Bill, 2009 (‘TM Bill’), which enables any individual or enterprise to seek registra-
tion of a trade mark in any of the 84 member countries of the Madrid Protocol through a single
application. The TM Bill will become law once it gets Presidential assent and is notified. For de-
tails on the TM Bill, please refer to our March 2010 issue of Inter alia.
v DOT, on September 1, 2010, has amended its UAS Licence Agreements and CMTS License
Agreements in order to enable telecom operators to use 3rd Generation spectrum (‘3G Spec-
trum’) and Broadband Wireless Access spectrum (‘BWA Spectrum’) for providing telecom ac-
cess services. Broadly, the amendments are with respect to (i) term for which the operator has
been given 3G Spectrum and BWA Spectrum usage rights; (ii) roll out obligations; (iii) license
fee and spectrum usage charges for 3G Spectrum and BWA Spectrum; (iv) merger of spectrum
blocks, where applicable; and (v) breach, revocation and surrender of 3G Spectrum and BWA
Spectrum. These amendments, therefore, apply to those entities that were granted 3G Spectrum
and BWA Spectrum usage rights pursuant to an auction process, including inter alia Bharti Airtel
Ltd., Aircel Ltd. and Vodafone Essar Ltd..
Foreign Exchange
v The Department of Industrial Policy and Promotion (‘DIPP’) had issued a consolidated v FDI Consolidated Circular 2 of
press note on March 31, 2010 that incorporates all the prior policies/regulations on the foreign 2010 issued
direct investment (‘FDI’) policy in India, which was to be updated/revised every six months. Ac-
cordingly, on September 30, 2010, DIPP issued Circular 2 of 2010 updating all instructions and
clarifications relating to the FDI policy, 2010 (effective October 1, 2010) (‘FDI Circular’). Some of
the key amendments to the extant policy are broadly summarized below:
i. Press Note 2 of 2010 prohibited the manufacturing of ‘cigars, cheroots, cigarillos and
cigarettes, of tobacco or of tobacco substitutes’, which have now been included in the
list of sectors/activities in which FDI is prohibited.
ii. Under the extant policy, FDI is allowed in animal husbandry, development of seeds,
pisciculture, aquaculture and floriculture/horticulture/cultivation of vegetables ‘un-
der controlled conditions’. The FDI Circular has now specified various technical and
operational parameters that constitute ‘controlled conditions’ in these sectors.
iii. It has been clarified that 100% foreign owned non-banking financial companies
(‘NBFCs’) with a minimum capitalization of Us$50 million, can set up subsidiaries for
specific NBFC activities, without being required to separately comply with the mini-
mum capitalisation norms with respect to such downstream subsidiaries proposing
to engage in NBFC activities.
iv. It has been clarified that Indian companies which are ‘owned and/or controlled by
non-resident entities’ are now permitted to make downstream investments utilizing
internal accruals, subject to compliance with other guidelines applicable to down-
stream investments.
v. With respect to FDI in permitted real estate development activities, it has been
clarified that the term ‘original investment’ means the entire amount brought in as
FDI. Further, it has been clarified that the lock-in-period of three years will be applied
from the date of receipt of each installment/tranche of FDI or from the date of com-
pletion of minimum capitalization, whichever is later.
vi. With respect to FDI in wholesale cash and carry trading, the condition that wholesale
trading to group companies would be permitted only for the purposes of internal
consumption has been omitted. However, the requirement, that wholesale trade to all
group companies taken together should not exceed 25% of the total turnover of the
wholesale venture, has been retained.
vii. It has been clarified that ‘minimum capitalisation’ includes share premium received
along with the face value of the shares only when it is received by the issuer company
upon issue of the shares to the non-resident investors, and does not include amounts
paid by a non-resident to a transferee in excess of the issue price in the case of trans-
fer of shares post issuance. This is relevant in sectors such as NBFCs and real estate
development where ‘minimum capitalization’ requirements have been stipulated.
viii. A clarification has been added to the definition of ‘capital’ to permit FDI in partly-
3
september 2010
paid shares and warrants under the approval route.
v DIPP has issued the following discussions papers and has sought views and suggestions of
AZB & PARTNERS the public on such papers: (i) discussion paper dated July 6, 2010 regarding FDI in the multi
ADVOCATES & SOLICITORS
brand retail sector; (ii) discussion paper dated September 10, 2010 that considers the possible
liberalisation of Press Note 1 of 2005; (iii) discussion paper dated September 28, 2010 that con-
siders various aspects relating to promoting FDI in limited liability partnerships; and (iv) dis-
cussion paper dated September 28, 2010 that considers the issue of shares to non-residents for
v Discussion papers issued by
DIPP
consideration other than cash.
v FDI through warrants v Based on certain recent press reports, it appears that the Government of India (‘GoI’) is
v Refinancing of domestic
considering approving FDI through warrants, subject to an upfront payment of 25% of the in-
Rupee loans for certain vestment being made on the date of issuance of the warrants and their conversion into fully paid
infrastructure sectors up equity shares within 12 months from the date of issuance. If the warrants are not converted
v Liberalisation of ECB Policy within such 12 month period, the issuing company would be liable to face rejection of its applica-
for hospitals, hotels and tion to receive FDI through such warrants, and could also face subsequent penalty and manda-
software sectors tory winding up. However, these conditions on issuance of warrants reported by the press have
v Extension of period allowing not been notified by DIPP.
buyback/prepayment of
Foreign Currency Convertible
v By way of its circular dated July 22, 2010, the Reserve Bank of India (‘RBI’) has permitted
Bonds refinancing of Indian Rupee (‘Rupee’) loans availed from domestic banks, through take-out fi-
nancing arrangements availed in the form of External Commercial Borrowings (‘ECBs’) under
v Guidelines on trading
of currency options on the approval route by eligible borrowers for certain sectors, i.e. sea ports and airports, roads in-
recognised stock exchanges cluding bridges and the power sector for the development of new projects, subject to prescribed
conditions, including the following: (i) a tripartite agreement should be in place between the
corporate developing the infrastructure project, the domestic bank and the overseas recognised
lender for the take-out of the loan within three years of the scheduled commercial operation
date. The take-out may be conditional or unconditional and the tripartite agreement should
clearly provide for the scheduled date of occurrence of the take-out; (ii) the loan should have
a minimum average maturity period of seven years; (iii) the fee payable, if any, to the overseas
lender until the take-out must not exceed 100 basis points per annum; (iv) on take-out, the resid-
ual loan agreed to be taken-out by the overseas lender will be considered an ECB; such loan must
be designated in a convertible foreign currency and must also comply with all extant norms
relating to ECBs (including the reporting arrangement as prescribed under the existing ECB pol-
icy); and (v) domestic banks/financial institutions must not guarantee the take-out finance.
v As per the extant policy on ECBs, companies in the hotels, hospitals and software sectors
are allowed to avail of ECBs up to Us$100 million per financial year under the automatic route.
RBI has now, by way of a circular issued on August 12, 2010, allowed companies in these sectors
to avail of ECBs beyond Us$100 million under the approval route for foreign currency and/or
Rupee capital expenditure for permissible end uses, provided the proceeds of such ECBs are not
used for acquisition of land.
v RBI by way of a circular dated August 9, 2010 has extended the period allowed to Indian
companies for buyback of their Foreign Currency Convertible Bonds under the approval route
till June 30, 2011. Previously, this facility was available only till June 30, 2010.
v By its circular dated July 30, 2010, RBI has increased the number of exchange-traded hedging
tools available in India. While persons resident in India were already permitted to participate
in the currency futures market in India, pursuant to the aforesaid circular, such persons can
also participate in the trading of currency options on spot Us$-Rupee exchange rate in the cur-
rency derivatives segment of recognised stock exchanges. The currency options market would
function subject to relevant regulations issued by RBI and the Securities and Exchange Board of
India (‘SEBI’) from time to time currently contained in the Exchange Traded Currency Options
(Reserve Bank) Directions, 2010 (‘Currency Directions’). Pursuant to the Currency Directions,
standardised exchange traded currency options are required to have certain prescribed features
including inter alia: (i) the underlying for the currency option should be the Us$-Rupee spot
rate; (ii) the options should be premium styled European call and put options; (iii) the size of
each contract should be Us$1,000; (iv) the maturity of the contract must not exceed 12 months;
(v) the contract is required to be settled in cash in Rupees; and (vi) the settlement price should
be RBI’s Reference Rate on the date of expiry of the contract. Scheduled banks and other entities
regulated by RBI are required to seek RBI’s prior approval before trading in currency options.
Entities regulated by other regulators are required to seek prior approval of such regulators for
trading in currency options and comply with any additional directions in this regard.
The Foreign Exchange Management (Foreign Exchange Derivative Contracts) Regulations,
2000 have also been amended by RBI pursuant to a notification dated July 19, 2010 to effect the
aforesaid changes.
4 september 2010
v Pursuant to the Foreign Exchange Management (Guarantees) (Amendment) Regulations,
2010 dated June 1, 2010, RBI has amended the Foreign Exchange Management (Guarantees) Reg-
ulations, 2000 with retrospective effect from April 20, 2009, permitting a person resident in In-
AZB & PARTNERS
dia to issue a corporate guarantee in favour of an overseas lessor, for financing import through ADVOCATES & SOLICITORS
operating lease in conformity with the Foreign Trade Policy in force, the Foreign Exchange Man-
agement (Current Account Transactions) Rules, 2000 and other relevant directions issued by
RBI from time to time.
v Permission to Indian residents
to issue corporate guarantee
in favour of an overseas lessor
Insurance & Real Estate
v The Insurance Regulatory and Development Authority (‘IRDA’) has by way of its circular v Cancellation of circulars on
dated July 12, 2010 clarified that consequent to issue of notification dated July 1, 2010 regarding referral arrangement
IRDA (Sharing Of Database For Distribution Of Insurance Products) Regulations, 2010 (‘Data- v Clarifications to the Database
base Regulations’), all previous circulars issued by it in relation to referral arrangements stand Regulations
cancelled with immediate effect. The circulars rendered defunct had set out specific guidelines v Guidelines on issue and
for life and general insurance companies entering into referral arrangements with banks. renewal of licences to
corporate agents
v IRDA by way of its circular dated August 9, 2010 (‘IRDA Circular’) has clarified certain pro-
visions of the Database Regulations. The Database Regulations required inter alia that all the v Additional compliances
for advertisements of life
referral arrangements entered into prior to the coming into effect of the Database Regulations, insurance products and unit
which were not in conformity with the provisions of the Database Regulations, be terminated linked life insurance products
forthwith. The Database Regulations also provided that such arrangements could continue if v Guidelines for Grievance
they were suitably modified or amended in terms of the Database Regulations within a period Redressal by insurance
of six months from the date of notification of the Database Regulations after obtaining IRDA’s companies
prior approval. v Shifting of Special Economic
The IRDA Circular clarifies the above provision of the Database Regulations and draws a dis- Zone Units
tinction between those referral entities that are not eligible to share data under the new regime
and those that may be eligible. In case of the former entities, the referral arrangements have to be
terminated forthwith with no extension period whatsoever. However, certain entities that have
running referral agreements with insurers may be eligible for data sharing under the Database
Regulations and an extension of six months may be granted for modifying such agreements to
comply with the Database Regulations, if the insurers seek IRDA’s prior approval in this regard.
v With a view to streamling the process of issuance and renewal of licenses of corporate agents
by insurance companies, IRDA has issued fresh guidelines on June 28, 2010 (‘IRDA Guidelines’).
Under the IRDA Guidelines, an insurance company must obtain the prior approval of IRDA be-
fore issuing or renewing any such licence. IRDA has also prescribed a checklist-cum-certification
that the applicant company must submit along with the application for issuance/renewal of li-
cense to a corporate agent. The procedure has been detailed in the IRDA Guidelines.
IRDA has also amended the IRDA (Licensing of Corporate Agents) Regulations, 2002 (‘Li-
censing Regulations’) by way of the IRDA (Licensing of Corporate Agents) (Amendment) Regu-
lations, 2010 (notified on July 1, 2010), which amends the code of conduct applicable to corporate
agents to include more stringent norms including a restriction with regard to payment of com-
mission towards any unauthorised referral arrangements. The amending regulations have also
included a process for cancellation of licenses of corporate agents, corporate insurance execu-
tives or any other person who holds a licence or certificate under the Licensing Regulations.
v IRDA has by its circular dated August 16, 2010 stipulated additional measures required to be
complied with by life insurers in order to enhance transparency in advertisements, especially
those relating to insurance products. These measures relate to (i) clear disclosure of the under-
lying conditions under which a guarantee operates, in cases where insurance advertisements
highlight the benefits of guarantees; (ii) clearly identifying the product advertised as an insur-
ance product; (iii) naming of the insurance products; and (iv) periodic information on invest-
ment updates in case of unit linked life insurance products.
v In a move to put in place speedy and effective grievance redressal systems, IRDA has issued
guidelines (effective August 1, 2010) providing minimum time-frames, uniform definitions and
classifications with respect to grievance redressal by insurance companies. The guidelines are
applicable for disposal of ‘grievances/complaints’ as defined therein.
v The Ministry of Commerce and Industry, through Instruction 59 (‘SEZ Instruction’), has
clarified that while there is no objection in-principle for shifting of units from one special eco-
nomic zone (‘SEZ’) to another, all proposals for transfer of units will be considered by the SEZ
Board of Approval on a case by case basis.
5
september 2010
v The Supreme Court (‘SC’) has held in the case of Nahalchand Laloochand Private Ltd. v.
Panchali Co-operative Housing Society Ltd.2 that stilt parking space/open parking space of a
building regulated by Maharashtra Ownership Flats (Regulation of the Promotion of Construc-
AZB & PARTNERS
ADVOCATES & SOLICITORS tion, Sale, Management and Transfer) Act, 1963 (‘MOFA’) is not a ‘garage’ under the provisions
of MOFA. SC further held that stilt parking space/open parking space are part of ‘common areas
and facilities’ and that a developer does not have the right to sell ‘stilt parking spaces’ as these
are neither a ‘flat’ nor appurtenant or attachment to a ‘flat’.
v Developer not authorized to
sell parking space
Infrastructure
v The Civil Liability for Nuclear v The Civil Liability For Nuclear Damage Bill, 2010 (‘Nuclear Bill’) has been passed by both
Damage Bill, 2010 the Houses of the Parliament, and now awaits assent by the President. For details on the Nuclear
Bill, please refer to our Client Update of September 2010.
Competition Law
v Competition Commission v In 2009, Jindal Steel & Power Ltd. (‘Jindal’) had provided information to the Competi-
of India v. Steel Authority of tion Commission of India (‘CCI’) under the Competition Act, 2002 (‘Competition Act’) alleg-
India & Other
ing that the Steel Authority of India Ltd. (‘SAIL’) had acted contrary to the provisions of the
Competition Act by abusing its dominant position in the market. Pursuant to a request for
information from CCI, SAIL requested for an extension in time to file its comments. However,
not finding any justification in SAIL’s request for extension, CCI formed the opinion that a
prima facie case existed against SAIL and on December 8, 2009, asked the Director General
(‘DG’) to investigate the matter.
The directions passed by CCI were challenged by SAIL before the Competition Appellate
Tribunal (‘CAT’). CCI filed an application before CAT for impleadment in the appeal filed by SAIL.
CAT dismissed CCI’s application for impleadment and held that CCI was not a necessary party
before CAT, in proceedings that were initiated by third parties. CAT further held that CCI must
give reasons while passing any order, direction or taking any decision, and set aside CCI’s direc-
tions on the basis that there was violation of principles of natural justice (i.e. if an opportunity
had been given to SAIL to be heard then it was not open for CCI to change its mind midway and
direct investigations). This order was appealed by CCI, before SC.
SC on September 9, 2010, held that taking a prima facie view and issuing a direction to the DG
for investigation is not an order appealable to CAT under the Competition Act as it constitutes
an administrative direction by CCI without entering upon any adjudicatory process and there is
no statutory duty cast on CCI to issue notice or grant a hearing, nor can any party claim a right
to notice and/or hearing at the stage of formation of the opinion by CCI in terms of a direction to
the DG to initiate investigation.3 SC also held that the power to issue interim orders should be ex-
ercised by CCI sparingly and under compelling and exceptional circumstances and that it should
in clear terms that it is satisfied that an act of contravention has been committed and continues
to be committed, with the possibility of a party suffering irreparable and irretrievable damage
or there being a definite apprehension of an appreciable adverse effect on competition in India.
SC issued directions to the effect that where interim orders are issued by CCI, a final order in that
regard must be passed as expeditiously as possible, and in any case, not later than 60 days. SC fur-
ther held that CCI will be a necessary party in cases where the inquiry has been initiated by CCI
suo moto, and in all other cases, CCI will be a proper party in the proceedings before CAT.
Significantly, SC has held that where investigation has been initiated by the DG, pursuant to
directions from CCI, the DG’s report should be submitted within the time as directed by CCI and
in all cases, no later than 45 days.
4 A private treaty is typically an arrangement whereby a listed company or a company proposing a public offering of
shares, offers a stake in itself (through an issue of shares, warrants, bonds etc.) to a media company. In return, the
media company provides media coverage for the first-mentioned company through advertisements, news reports,
advertorials etc.
7
september 2010
ready providing internet based trading to their customers in accordance with the SEBI circular
dated January 31, 2000 to provide securities trading services using wireless technology (subject
to prescribed conditions). Securities trading using wireless technology includes trading through
AZB & PARTNERS
ADVOCATES & SOLICITORS devices such as mobile phones, laptops with data cards etc. that use Internet Protocol.
v Regulation 37(1) of the SEBI (Mutual Fund) Regulations, 1996 specifies that ‘a unit unless
otherwise restricted or prohibited under the scheme, shall be freely transferable by act of parties
or by operation of law’. SEBI has in its circular dated August 18, 2010 (‘MF Circular’) instructed
v Transferability of units of
mutual funds
all asset management companies to clarify (by way of an addendum) that units of all mutual
fund schemes held in dematerialised form will be freely transferable from the date of the issue
v Proposal on regulation of of this addendum, and no later than October 1, 2010. However, SEBI has also clarified that restric-
fees and charges of portfolio
managers tions on transfer of units of equity linked savings scheme (‘ELSS’) during the lock-in period will
continue to be applicable as per the terms of the ELSS guidelines.
v Changes in reporting of
lending of securities bought in v To bring about greater uniformity, clarity and transparency in the fees and charges levied in
the Indian market and OTC’s client agreements by portfolio managers who are registered with SEBI under the SEBI (Portfolio
transactions
Managers) Regulations 1993 (‘PM Regulations’), SEBI issued a consultative paper on July 26, 2010
v Physical settlement of stock containing, inter alia, the following proposals (to which public comments have been invited)
derivatives which pertain to: (i) profit sharing/performance related fees be charged on the basis of a ‘high
water mark’5 principle over the life of the investment; (ii) all fees and charges will be levied on
the actual amount of clients’ funds under management. If there has been a partial withdrawal of
funds by investors, all fees and charges to be proportionately charged and the ‘high water mark’
to be accordingly adjusted; and (iii) the client agreement should contain a separate annexure
that will list all fees and charges payable to the portfolio manager. The format for such annexure
has been provided in the circular.
v SEBI through its recent circulars has decided to modify certain requirements relating to: (i)
reporting to be made by foreign institutional investors regarding securities lent by them to enti-
ties abroad, which have been amended from daily submissions to weekly submissions; and (ii)
reporting to be made by regulated entities in relation to their over the counter transactions in
certificates of deposit and commercial papers on the Fixed Income Money Market and Deriva-
tives Association of India reporting platform.
v SEBI through its circular dated July 15, 2010 has decided to provide flexibility to stock ex-
changes to offer: (i) cash settlement (settlement by payment of differences) for stock options and
stock futures; (ii) physical settlement (settlement by delivery of underlying stock) for stock op-
tions and stock futures; or (iii) a combination of cash and physical settlement for stock options
and stock futures.
Litigation
v Restrictions on transfer of v A division bench of Bombay HC on September 1, 2010, in the case of Messer Holdings Ltd.
shares of public companies v. Shyam Madanmohan Ruia and others12 (‘Messer case’) has ruled that transfer restrictions
relating to shares of a public limited company, consensually agreed to between shareholders, are
valid and enforceable and not in violation of Section 111A of the Companies Act, 1956 (‘Compa-
nies Act’). Bombay HC also ruled that in order for such share transfer restrictions to be enforce-
able, the company need not be a party to the document recording such transfer, and neither do
such restrictions have to be incorporated in the articles of association of a company. With this
decision, Bombay HC overruled an earlier decision of a single judge bench of Bombay HC in the
case of Western Maharashtra Development Corporation Ltd.13 which ruled that ‘free transfer-
ability’ as provided for in Section 111A of the Companies Act meant that any form of transfer
restrictions relating to shares of a public limited company is unenforceable. For further details
on this decision, please refer to our Client Update of September 2010.
Taxation
v Direct Taxes Code, Bill 2010 v Direct Taxes Code Bill, 2010 (‘DTC’) has been introduced in the Parliament on August 30,
tabled in the Parliament 2010. Some of the key proposals are as follows:
i. Change in the concept of residence for foreign entities;
ii. Income from transfer outside India, of any share or interest in a foreign company, tax-
able in India, if at any time during the 12 months prior to transfer, the assets owned,
directly or indirectly, by such company represent at least 50% of the fair market value
of all the assets owned by it;
iii. Introduction of General Anti-Avoidance Rules (‘GAAR’) and Controlled Foreign
Companies (‘CFC’) provisions;
iv. Corporate tax rate for both, domestic and foreign company, to be the same i.e. 30%.
Surcharge and education cess abolished. MAT levied at the rate of 20% on book prof-
its. Branch profit tax (‘BPT’) at the rate of 15% to be levied on income attributable,
directly or indirectly, to a permanent establishment;
v. Treaty to override DTC subject to situations where GAAR/CFC/BPT provisions invoked;
vi. Withholding tax rate on royalty and fees for technical services arising to non-resi-
dent increased from 10% to 20%;
vii. Capital gains to be taxed at marginal rates applicable to tax payers, subject to the
following:
12 Appeal No. 855 of 2003 in Notice of Motion No. 534 of 2002 in Suit No. 509 of 2001.
13 Western Maharashtra Development Corporation Ltd. v. Bajaj Auto Ltd., judgment dated February 15, 2010 in
Arbitration Petition No. 174 of 2006.
10 september 2010
• No capital gains on sale of listed shares on which Securities Transaction Tax (‘STT’)
is paid, if held for more than 1 year14;
• 50% of capital gains exempt on sale of listed shares on which STT is paid, if held for
AZB & PARTNERS
1 year or less15. ADVOCATES & SOLICITORS
v SC, in a recent case16 on September 9, 2010, reversed the decision of Karnataka High Court in
the case of CIT v. Samsung Electronics Co. Ltd and Ors.17. SC held that a person paying any sum
to a non-resident is neither liable to deduct tax nor is required to approach the tax authorities
under section 195(2) of the Income-tax Act, 1961, if no part of such sum is chargeable to tax in v SC reverses Karnataka High
India. Court decision in the case of
GE India Technology Centre
v In the case of Vodafone International Holdings B.V v. Union of India & Another18, Bombay Pvt. Ltd. v. CIT
HC on September 8, 2010, has held that the proceedings initiated by the Indian Revenue Authori-
ties (‘IRA’) under Section 201 of the IT Act cannot be held to lack jurisdiction. Key observations v Bombay HC ruling in Vodafone
International Holdings B.V v.
of Bombay HC are as follows: Union of India & Another
i. There is a difference between tax planning and tax evasion. Tax planning is legitimate;
ii. Controlling interest is not an asset separate from the shares;
iii. For the transfer of a capital asset to be taxable in India, the capital asset must be situ-
ated in India. Shares are situated where the register of members is maintained;
iv. Shareholders of a company have no direct interest in the property of the company (so
transfer of shares does not result in the transfer of the company’s property);
v. Where a payment is made to a non-resident, the whole or a part of which is liable to
Indian income tax, the obligation to withhold tax at the time of payment arises. This
applies to non-resident payers as well;
vi. The true nature of the transaction as it emerges from the transactional documents
is that the transfer of the solitary share of the Cayman Island company reflected
only a part of the arrangement put into place by the parties in achieving the object
of transferring control of Hutchison Essar Ltd. to Vodafone International Holdings
BV (‘Vodafone’);
vii. The transaction was not the mere sale of shares of the Cayman Island company. In-
trinsic to the transaction was a transfer of other rights and entitlements, namely con-
trol premium, use and rights to the Hutch brand in India, non-compete agreement,
value of non-voting non-convertible preference shares, loan obligations and an enti-
tlement to acquire a further 15% indirect interest in Hutchison Essar Ltd. These rights
and entitlements were in themselves capital assets, that were located in India; and
viii. Not the entire sale consideration is attributable to India. The principle of apportion-
ment will apply.
Vodafone appealed to SC against the above order. SC on September 27, 2010, issued notice direct-
ing the IRA to compute Vodafone’s tax liability within four weeks.19
14 Lack of clarity whether one year to be counted from the date of purchase or from the end of financial year in which
purchase made.
15 Lack of clarity whether one year to be counted from the date of purchase or from the end of financial year in which
purchase made.
16 GE India Technology Centre Pvt. Ltd. v. CIT, 2010-TII-07-SC-INTL.
17 [2009] 185 Taxman 313 (Kar).
18 2010-TII-13-HC-MUM-INTL.
19 Order dated September 27, 2010 in SLP (Civil) No. 26529/ 2010.
11
september 2010
AZB & PARTNERS
ADVOCATES & SOLICITORS
v
Best Law Firm (India) Golden Award
International Legal Alliance Summit & Awards, 2010
v
Best National Law Firm (India)
Chambers Asia Law Awards, 2010
v
Firm of the Year (India)
PLC Which Lawyer? Awards, 2010
v
Asian-Counsel 2010
Firm of the Year in India for Corporate / M&A
& awarded the Most Responsive Domestic Firm of the Year
v
M&A Law Firm of the Year in India
Finance Monthly Law Award for Achievement 2010
v
Ranked 1
Indian Law Firm – 2010 in the RSG Top 40 Ranking
v
“Most Trusted Law Firm of the Year – India”
InterContinental Finance Magazine’s Global Awards 2010
v
India M&A Law Firm of the Year
The M&A Atlas Awards 2010 by the Global M&A network
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12 september 2010