Retro tax settlement: Cos must indemnify govt; wait 5 months to get refund

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October 02, 2021 3:21 PM

An Indian affiliate is any department, agency, instrumentality, public sector company or any other entity of the government owned directly or indirectly in India or abroad.

It committed to refunding Rs 8,100 crore in taxes collected for enforcement of the demand.

Companies such as Cairn Energy Plc and Vodafone Group of the UK will have to indemnify the Indian government against future claims in order to settle their retrospective tax cases, according to rules notified by the government to settle disputes arising from seeking back taxes.

The Ministry of Finance on October 1 notified rules that when adhered to will lead to the government withdrawing tax demands raised using the 2012 retrospective tax law and any tax collected in enforcement of such demand is paid back.

But the repayment, going by the timelines drawn in the rules, will take a minimum of 2-3 months.

According to the rules, the companies will have to withdraw any pending litigation or proceeding before any forum against the levy of the retrospective tax and also give an assurance that they won’t pursue any further claims in the future.

In addition, the companies and any other interested party will have to furnish an indemnity bond committing not to seek damage from the Indian government or its affiliates.

Companies will have to file a declaration with the income tax authorities along with a board resolution or legal authorisation besides an indemnity bond, the rules said.

According to the timelines drawn in the rules, the initial submission of an undertaking to withdraw all pending legal proceedings has to be done in 45 days. Thereafter the relevant Principal Commission of Income tax has to give a certificate accepting or pass an order rejecting the claim in 15 days from the receipt of the application.

After grant of certificate, the companies will have to within 60 days fulfil the condition of indemnity by all interested parties. After this, the order granting relief has to be made within 30 days and only after this the refund will be initiated which will take at least 10 days.

Assuming companies are able to shorten time schedules, the initial submission under Form 1 will still take 15 days as the undertakings are quite onerous, tax experts said.

After grant of certificate by the Principal Commissioner after a fortnight, the conditions of rule 11UE will take another 15 days to be met. Thereafter a month is the outer timeline set for granting relief and a refund initiated thereafter.

“Even if the timelines are shortened by companies, it will still take 2-3 months to get a refund,” a tax expert said.

According to the rules, the companies concerned will irrevocably withdraw, discontinue and not pursue any lawsuits, arbitration, conciliation or mediation either in India or abroad.

A company will also have to withdraw proceedings in respect of any award against the government and all Indian affiliates.

“The declarant and all the interested parties shall indemnify, defend and hold harmless the Republic of India and Indian affiliates from and against any and all costs, expenses (including attorneys’ fees and court’s fees), interest, damages, and liabilities of any nature arising out of or in any way relating to the assertion or, bringing, filing or maintaining of any claim, at any time after the date of furnishing the undertaking,” one of the conditions says.

Another condition says, “The declarant and all the interested parties shall refrain from facilitating, procuring, encouraging or otherwise assisting any person (including, but not limited to any related party or interested party) from bringing any proceeding or claims of any kind related to any relevant order or orders, or in relation to any award, order, judgment, or any other relief against the government or Indian affiliates in connection with any relevant order or orders.”

An Indian affiliate is any department, agency, instrumentality, public sector company or any other entity of the government owned directly or indirectly in India or abroad.

After facing the embarrassment of its properties in Paris getting attached and Air India assets in the US being pursued to enforce an international arbitration award that overturned levy of retrospective tax on Cairn Energy and ordered refund of USD 1.2 billion collected to enforce such demand, the government in August amended the Income Tax Act to withdraw all retro tax demands.

It committed to refunding Rs 8,100 crore in taxes collected for enforcement of the demand. Of this, Rs 7,900 crore is due only to Cairn.

No major enforcement proceedings were done to collect taxes from other 16 companies including Vodafone which faced retrospective tax demands.

Once these conditions are fulfilled, the government will refund the tax amount paid by the companies, without interest and penalty.

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