British oil explorer Cairn Energy Plc expects an international arbitral tribunal to give a decree by the summer of 2020 on its challenge to the Indian government seeking Rs 10,247 crore in retrospective taxes. The three-member tribunal, which had in December 2018 completed main court hearings in the British company’s challenge to the Indian government using a retrospective legislation to seek Rs 10,247 crore in taxes, was supposed to give an award by February 2019, but in March 2019, it delayed it to 2019-end and then to the summer of 2020.
“All formal hearings and submissions have now been made and the tribunal is in the process of drafting its award. The tribunal has indicated that it expects to be in a position to issue the award in the summer of 2020,” Cairn said in its half-yearly earnings announcement on Tuesday.
No reason was given by the tribunal for the delay in the award. Cairn said it is seeking full restitution for losses totalling more than USD 1.4 billion resulting from government expropriation of its investments in India in 2014. The company, which gave the country its biggest oil discovery, received a notice from the income tax department in January 2014, requesting information related to the group reorganisation done in 2006. Alongside, the department attached the company’s near 10 per cent shareholding in its erstwhile subsidiary, Cairn India.
In March 2015, the tax department sought Rs 10,247 crore in taxes on alleged capital gains made by the company in the internal reorganisation. Cairn Energy had in 2010-11 sold Cairn India to Vedanta. Following the merger of Cairn India and Vedanta in April 2017, the UK firm’s shareholding in Cairn India was replaced by a shareholding of about 5 per cent in Vedanta issued together with preference shares. In addition to attaching its shares in Vedanta, the tax department seized dividends totalling Rs 1,140 crore due to it from those shareholdings, and set off a Rs 1,590-crore tax refund against the demand. Cairn Energy in 2015 initiated an international arbitration to challenge retrospective taxation. Pending final award, the tax department sold Cairn Energy’s shares in Vedanta to recover part of the tax demand.
“The Indian income tax department holds Cairn UK Holdings Ltd (a direct subsidiary of Cairn Energy) as an assessee in default in respect of tax demanded on the 2006 transactions, and as such has pursued enforcement against CUHL’s assets in India. “To date, these enforcement actions have included attachment of CUHL’s shareholding in Vedanta Ltd and sale of 181,764,297 shares and seizure of the proceeds, seizure of the proceeds from the redemption of the preference shares, seizure of the USD 159.8 million dividends due to CUHL, and offset of a USD 222.8 million tax refund due to CUHL in respect of another matter,” the statement said.
To date, 99 per cent of Cairn UK Holdings Ltd’s (CUHL) shareholding has been liquidated by the tax department, it said. The assessment by the tax department of principal tax due on the 2006 transactions is Rs 10,267 crore, plus applicable interest and penalties. “Interest is currently being charged on the principal at a rate of 12 per cent per annum from February 2017, although this is potentially subject to the tax department’s Indian court appeal that interest should be back-dated to 2007,” it said.
“Penalties are currently assessed as 100 per cent of the principal tax due, although this is subject to appeal by CUHL that penalties should not be charged given the retrospective nature of the tax levied.” Cairn said it has got legal advice confirming that the maximum amount that could ultimately be recovered from the company by the tax department, in excess of the assets already seized, is limited to the value of CUHL’s assets, principally the remaining ordinary shares in Vedanta Ltd. “In March 2015, Cairn filed a Notice of Dispute under the UK-India Bilateral Investment Treaty in order to protect its legal position and seek restitution of the value effectively seized by the Indian income tax department (IITD) in and since January 2014.
“Cairn’s principal claims are that the assurance of fair and equitable treatment and protection against expropriation afforded by the treaty have been breached by the actions of the IITD, which is seeking to apply retrospective taxes to historical transactions already closely scrutinised and approved by the Government of India. The IITD has attached and seized assets to try to enforce such taxation,” it said. Cairn is pleading that the effects of the tax assessment should be nullified and that the company should receive recompense from the government for the loss of value resulting from the 2014 attachment of CUHL’s shares in Cairn India Ltd and the withholding of the tax refund, which together total about USD 1.4 billion, according to the statement.
“The treaty proceedings formally commenced in January 2016 following an agreement between Cairn and the Republic of India on the appointment of a panel of three international arbitrators under the terms of the treaty. Cairn’s statement of claim was submitted to the arbitral tribunal in June 2016 and the Republic of India submitted its statement of defence in February 2017.
“Further submissions and document production took place in 2017 and 2018. The main evidentiary hearing of Cairn’s claim under the Treaty took place in August 2018 in The Hague with a final hearing in December 2018. All formal hearings and submissions have now been made and the tribunal is in the process of drafting its award. The tribunal has indicated that it expects to be in a position to issue the award in the summer of 2020,” it said. Based on detailed legal advice, Cairn said it remains confident that it will be successful in this arbitration and, accordingly, no provision has been made for any of the tax or penalties assessed by the IITD. It had previously stated that the arbitration panel is expected to issue a binding and internationally-enforceable award.