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India likely to go in appeal against Cairn arbitration award

Last updated on: February 19, 2021 17:06 IST

The government is likely to file an appeal against the USD 1.4 billion international arbitration award won by Cairn Energy in a tax dispute, even as the issue did not figure during two days of talks the finance secretary held with the company officials to look for a resolution, sources with knowledge of the matter said.

IMAGE: Kindly note that this image has been posted for representational purposes only. Photograph: Reuters.

Soon after the second meeting in as many days between Cairn CEO Simon Thomson and Finance Secretary Ajay Bhushan Pandey ended, a person informed of the development said the government intends to defend its sovereign right in taxation and will file an appeal against an international tribunal ordering India to return USD 1.4 billion to the British firm.

 

However, another person briefed on the discussions between Cairn and finance ministry said the option of India appealing against the verdict did not figure in the talks either on Thursday or Friday.

Cairn on its part remained tight-lipped on the parleys it has initiated with an aim to avert the company having to take legal recourse to recover the amount including through seizure of Indian assets overseas.

"Constructive dialogue is continuing," Thomson said after the meeting on Friday. He did not elaborate.

Cairn in a letter to the Indian government last month indicated it could seize overseas assets such as airplanes and ships if New Delhi fails to comply with the arbitration award and return the value of the shares sold, dividend seized and tax refund withheld by the income tax department to recover part of the tax demand it had raised using retrospective legislation.

The firm has already started identifying assets it could seize in the event the Indian government does not comply with the tribunal order.

The first person said the government, however, has kept open the possibility of a resolution within existing Indian laws.

The options under the existing provisions, the person said, include Cairn opting for the direct tax dispute settlement scheme Vivad se Vishwas, which gives relief on interest and penalty if the principal tax demand is paid.

The tax department had in March 2015 slapped a tax demand of Rs 10,247 crore on Cairn for the alleged capital gains it made on reorganising its India business prior to an IPO in 2006-07.

It levied short-term capital gains tax in raising the demand even though Cairn had over several years built the India business that included developing the Ravva oil and gas field in the KG Basin and discovering the nation's biggest onland oilfield in Rajasthan.

Cairn at that time stated that its internal reorganisation was in compliance with the law and had been approved by various regulatory bodies including Sebi. It denied evading any taxes prevalent at that time and challenged the tax demand through international arbitration.

After coming to power in 2014, the Modi government had promised not to use a 2012 legislation that gave the government to levy taxes retrospectively, to raise any fresh demand.

The Cairn assessment was opened in January 2014. The then finance minister Arun Jaitley had promised to abide by arbitration awards in retro tax cases.

The first source said the government welcomes Cairn's move to reach out for a resolution but any dispute resolution sought by the company will have to be within already existing laws.

The government, he said, will file an appeal against the Cairn arbitration award soon and will contest its sovereign rights to tax.

It will also strongly contest other suits brought by Cairn Energy at various other international courts, he added.

Last week, Cairn had filed cases in the US, the UK and the Netherlands courts to register the arbitration award, a prelude to seeking legal seizure of assets.

The second source said the government is aware of the legal consequences and is weighing all its options.

"The fact that a second round of meeting was sought by the finance ministry indicates their eagerness to avoid any legal consequences and look for a resolution," the person said.

The options discussed at the meeting to resolve the issue weren't immediately known.

The government alleges that the offshore transactions executed by Cairn in 2006-07 were aimed at evading taxes. The transaction in 2006-07 involved entities in Jersey led to capital gains in the hands of Cairn UK Holdings, which is taxable in India, the first person said.

Cairn's hands have been forced by its shareholders who after waiting patiently for seven years for resolution of the tax issue, now wants action to recover the award. The shareholders include big financial institutions such as BlackRock, Fidelity, Franklin Templeton, Schroders and Aviva.

But, since the 582-page judgment was issued, the government has given no indication about whether it intends to honour the verdict, even though payment was due immediately.

Rather than sit and wait for the government response, Cairn has moved to cover for all eventualities and moved courts in the US, the UK and the Netherlands. It will also approach court in Canada, the sources said.

An international tribunal had in December unanimously ruled that India violated its obligations under the UK-India Bilateral Investment Treaty in 2014, when the income tax department slapped a Rs 10,247-crore tax demand using legislation that gave it powers to levy taxes retrospectively.

Soon after seeking Rs 10,247 crore in taxes over alleged capital gains made by the company over a 2006-07 reorganisation of India business before its listing, the tax department seized Cairn's residual 10 per cent stake in Cairn India.

In a ruling Cairn had previously described as "final and binding", the tribunal ordered New Delhi to pay USD 1.2 billion in damages, plus interest and costs, to compensate Cairn for the shares -- long sold off by the tax department -- as well as confiscated dividends and withheld tax refunds. This totals USD 1.4 billion.

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