Cairn moves world arbitration panel against dividend freeze

28 Jun 2017 1:50 PM GMT

UK's Cairn Energy plc has petitioned an international arbitration tribunal against billionaire Anil Agarwal-led Vedanta Ltd withholding its dividend for the last three years despite the tax authorities saying that there is no attachment in force. The Hague (Netherlands)-based three-member Tribunal, which was constituted to decide on Cairn's plea against India slapping a Rs 10,247-crore retrospective tax demand and freezing its assets, would hear the petition.

Income Tax Department officials are, however, cut up with Cairn Energy for taking up the issue with the arbitration panel as there is no longer any attachment order and the dividend payment is a matter between Vedanta and the British MNC. "Cairn India/ Vedanta approached the tax department, both verbally and in writing on multiple occasions, seeking a written order so that they can continue to withhold the dividend due to Cairn Energy. We did not respond to them," a senior official said.

When contacted, a Vedanta spokesperson said, "The dividends due to Cairn Energy plc for the last three years are lying in an unpaid dividend account as they were subject to an attachment order (U/S 281B) by the Tax Department. "We would like to reiterate that these dividends are not available for use by Cairn (now Vedanta)."

Officials said that they had lifted the freeze on the dividend payment by Cairn India on March 31, 2016, when its 281B order ceased to be in effect. This has also been communicated in writing to the international arbitration panel. Cairn India is the erstwhile subsidiary of British Cairn Energy, which it sold to Vedanta in 2011. The British firm still holds holds a 9.8 per cent stake in Cairn India but has not been paid shareholder dividend for the last three years, totalling about $100 million.

Officials said that there was a provisional freeze on Cairn Energy receiving dividends as well as selling its residual stake in Cairn India during the pendency of assessment proceedings after a draft tax demand of Rs 10,247 crore was raised on January 22, 2014, using retrospective tax legislation.

"After the passing of the final assessment order on January 25, 2016, the provisional attachment of these assets was extended up to March 31, 2016, whereupon the order under section 281B expired," said another official.

The Vedanta spokesperson said: "Cairn Energy plc has also been in touch with us and we have been responding to their mails/ letters sharing our predicament in view of the notice now issued to them post the order of the Income Tax Tribunal for payment of tax liability by June 15, 2017."

Cairn Energy, which is the only company whose assets have been frozen for a retrospective tax demand, had previously approached Sebi against Cairn India/ Vedanta Ltd not paying dividend for the last three financial years.

The official said that besides the order on dividend, Cairn Energy is also seeking an injunction from the arbitration panel against the Income Tax Department initiating proceedings to recover Rs 10,247 crore in retrospective tax.

Within weeks of the tax tribunal ITAT upholding the levy of retrospective tax on the 2006 transfer of shares by the UK firm to a newly created Indian unit, Cairn India, the department had on March 31 issued a fresh demand notice of Rs 10,247 crore and set June 15 as the time to pay the tax, failing which it would initiate recovery proceedings.

Cairn Energy is contesting the tax demand through international arbitration and has not participated in the amnesty scheme the Government floated last year, by promising to waive interest and penalty if the principal tax is paid. Fearing that the tax department would proceed to take over or sell its residual 9.8 per cent stake in Cairn India (now Vedanta Ltd), confiscate the Rs 1,500 crore of income tax refund due and $100 million of dividend income after June 15, the British firm approached the same arbitration tribunal, seeking a stay on the Indian government's action, they said.

The official said that the tax department is contesting the very jurisdiction of the panel to give directions to a sovereign nation. India, officials said, is contesting that the tax cannot be arbitrated under bilateral investment protection treaties and no international arbitration panel can decide on the legislative power of India's Parliament to frame tax laws.

Cairn has resorted to arbitration under the India-UK bilateral investment protection treaty.

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