Indirect Transfer Tax – India’s Tryst with Retrospective Taxation and Treaty Disputes

In 2012, the Indian government amended the Indian Tax Law to introduce a tax on indirect transfers. This received immense backlash that was largely focused on a complex issue, i.e. Parliament’s power of retrospective application of tax-laws and its impact on international treaties. This attracted several disputes, domestic and international, which threatened the credibility of India’s investment environment, which led to the withdrawal of the retrospective amendment. The authors assesses the validity of such retrospective amendment in light of constitutional and domestic tax law policy. Further, the authors discuss the prominent disputes that arose in relation to the retrospective application of the indirect transfer tax, including the disputes before international investment arbitration tribunals. Thereafter, the authors highlight the international public policy initiatives as well as the remedial measures adopted by the Indian government.