GAAR, Retrospective Amendments, And Cross- Border Tax Avoidance: Insights From The Vodafone Case
- IJLLR Journal
- Oct 25
- 1 min read
Aditee Singh, B.A. LL.B. (Hons.), Hidayatullah National Law University (HNLU), Raipur
ABSTRACT
The problem of cross-border tax avoidance is a problem faced by the developing economies especially when multinationals employ offshore arrangements to avoid taxes in the home countries. The case of Vodafone International Holdings B.V. v. Union of India (2012) revealed the flaws in how the Indian tax system captures the transfer of the Indian assets formed as part of an indirect transfer. The Supreme Court decided in favour of Vodafone and made it clear under the tax avoidance does not amount to anything illegal until there is a statutory provision that explicitly binds it, which is the maintenance of legal certainty. The government replied by introducing the amendments in the retrospective which taxes offshore share transfers in which a significant amount of value is derived by Indian assets. Although aimed at safeguarding the revenue, such amendments undermined investor confidence and caused expensive international arbitration litigation. The General Anti-Avoidance Rule (GAAR) was introduced by India in 2017, is a prospect-based and principles based rule to cover impermissible avoidance arrangement. GAAR implements substance-over-form and purpose examination, including the procedure safety and specific threshold, which provide a level of predictability while discouraging the abusive transactions. GAAR encourages fairness, legal certainty, and sustainable compliance when compared to retroactive measures, and this reflects the significance of forward-looking, legislatively sound anti-avoidance rules in the balance between protecting the revenues and investor confidence.
Keywords: Cross-border tax avoidance, Vodafone case, retrospective amendment, GAAR, legal certainty
