Govt recovering tax from Cairn UK, why come after us: Cairn India to HC

Cairn India Ltd had moved the high court in April 2015 against Rs 204.95 billion tax demanded from it

Cairn India, now Vedanta, on Thursday told the Delhi High Court that proceedings regarding over Rs 200 billion (Rs 20,000 crore) tax demand for non-payment of withholding tax on capital gains in 2006 by its former parent Cairn UK, need not continue as the authorities have taken action against the foreign entity.

Cairn India, which in April last year merged with businessman Anil Agarwal's Vedanta Group, told a bench of Justices Sanjiv Khanna and Chander Shekhar that the Indian tax authorities have already recovered over Rs 6 billion (Rs 600 crore) from it towards the separate Rs 102.47 billion (Rs 10,247 crore) tax demanded from the foreign company in respect of the capital gains made in 2006.

Besides, the authorities have also attached Cairn UK's shares, worth around Rs 90 billion (Rs 9,000 crore), in its former Indian arm, senior advocate Harish Salve, appearing for Cairn India, told the bench.

Cairn India Ltd (CIL) had moved the high court in April 2015 against the Rs 204.95 billion (Rs 20,495 crore) tax demanded from it. The amount comprised Rs 102.48 billion (Rs 10,248 crore) principal tax demand and an interest of Rs 102.47 billion (Rs 10,247 crore), the company had told the court.

"Why beat us up if the Government of India is recovering the amount from Cairn UK Holdings," Salve said and suggested a "way out" — that the Indian company will pay the shortfall, if any, in the tax demanded from the foreign company after the recovery process got over.

The senior lawyer said the Indian company was only accused of not paying withholding tax in relation to the capital gains made by Cairn UK in 2006 when it transferred shares of Cairn India Holdings to Cairn India as part of an internal reorganisation of its Indian business.

He also said the Indian company is a prime oil producer which is selling crude at a price of $6 per barrel even when global rates were much higher.

The bench said the "way out" was an administrative step which has to be explored by the company outside the court with the government.

It, however, suggested to the company to raise its grievances before the Income Tax Appellate Tribunal (ITAT) instead of the court.

Salve and the lawyer for the tax department sought time to seek instructions on the suggestion made by the court, which listed the matter for further hearing on March 13.

The tax department's lawyer also said the amount of Rs 102.47 billion (Rs 10,247 crore) demanded from Cairn UK was only the principle and there was a huge interest component on it.

Cairn UK has through a separate plea moved the high court against the tax demanded from it after the ITAT in March last year had held it liable to pay the amount.

Apart from this, the foreign company has also initiated arbitration against the Indian government under the India-UK Bilateral Investment Protection Agreement (BIPA).

Cairn UK has asked the arbitration panel to order India to withdraw its "unlawful" tax demand and compensate it for the harm suffered by the seizure of the Cairn India shares.

The government had earlier told the court that the total sale price of transferring Cairn Energy's (parent of Cairn UK) assets here -- around 26 companies which have production- sharing agreements with the government to extract hydrocarbons -- to CIL was Rs 266.81 billion (Rs 26,681 crore).

It had said the cost of acquisition of these companies came to around Rs 21.78 billion (Rs 2,178 crore) based on face value of the shares.

After deducting this from the total sale price, the capital gains of the company came to around Rs 245 billion (Rs 24,500 crore).

CIL had opposed the government's submission saying there was no capital gain as the transaction had taken place through 100 per cent share swap.

It had said that it had carried out an internal group reorganisation by transferring 100 per cent shares of the 26 companies to Cairn India Holdings Ltd, based in USA, whose shares in turn were transferred to CIL and its shares were transferred to Cairn UK Holdings Ltd.