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ndia has become a hotbed of telecom mergers which are unique to the telecom industry.
and acquisitions in the last decade. Foreign
investors and telecom majors look at India TRAI Recommendations
as one of the fastest growing telecom markets Telecom Regulatory Authority of India (TRAI)
in the world. Sweeping reforms introduced by is of the view that while on one hand mergers
successive Governments over the last decade encourage efficiencies of scope and scale and
have dramatically changed the face of the hence are desirable, care has to be taken that
telecommunication industry. The mobile sector monopolies do not emerge as a consequence.
has achieved a teledensity of 14% by July 2006 TRAI had issued its recommendation to DoT in
which has been aided by a bouquet of factors January 2004 regarding intra circle Mergers &
like aggressive foreign investment, regulatory Acquisitions which were accepted by DoT and
support, lower tariffs and falling network cost stated below.
and handset prices.
M&A have also been driven by the DoT Guidelines
development of new telecommunication Department of Telecommunications (DoT)
technologies. The deregulation of the industry can be credited with issuing a series of liberalis-
tempts telecom firms (telcos) to provide bundled ing initiatives in telecom sector which has led to
products and services, especially with the phenomenal growth of the Industry. Based on
ongoing convergence of the telecom and cable recommendations of TRAI, DoT issued guidelines
industries. The acquisition of additional products on merger of licences in February 2004. The im-
and services has thus become a profitable move portant provisions are state below:
for telecom providers.
l Prior approval of the Department of
REGULATORY FRAMEWORK Telecommunications will be necessary for
merger of the licence.
M&A in telecom Industry are subject to
various statutory guidelines and Industry l The findings of the Department of
specific provisions e.g. Companies Act, 1956; Telecommunications would normally be
Income Tax Act, 1961; Competition Act, 2002; given in a period of about four weeks from
MRTP Act; Indian Telegraph Act; FEMA Act; FEMA the date of submission of application.
regulations; SEBI Takeover regulation; etc. We
l Merger of licences shall be restricted to the
will cover some of these regulations hereunder
same service area.
l There should be minimum 3 operators in
— Sanjoy Banka a service area for that service, consequent
The author is a member of the Institute upon such merger.
and working with Bharti Airtel Limited as
Principal Finance Officer (Corporate and l Any merger, acquisition or restructuring,
National Accounting). He can be reached
at sanjoybanka@rediffmail.com. leading to a monopoly market situation in
the given service area, shall not be permit- investment in Indian promoters/investment
ted. Monopoly market situation is defined companies including their holding
as market share of 67% or above of total companies, etc., referred as FDI, should
subscriber base within a given service area, not exceed 74%. The 74% investment
as on the last day of previous month. For can be made directly or indirectly in the
this purpose, the market will be classified as operating company or through a holding
fixed and mobile separately. The category company and the remaining 26 per cent
of fixed subscribers shall include wire-line will be owned by resident Indian citizens
subscribers and fixed wireless subscribers. or an Indian Company (i.e. foreign direct
l Consequent upon the merger of licences, investment does not exceed 49 percent and
the merged entity shall be entitled to the the management is with the Indian owners).
total amount of spectrum held by the It is also clarified that proportionate foreign
merging entities, subject to the condition component of such an Indian Company will
that after merger, the amount of spectrum also be counted towards the ceiling of 74%.
shall not exceed 15 MHz per operator per However, foreign component in the total
service area for Metros and category ‘A’ holding of Indian public sector banks and
service areas, and 12.4 MHz per operator Indian public sector financial institutions
per service area in category ‘B’ and category will be treated as ‘Indian’ holding.
‘C’ service areas. l The licencee will be required to disclose the
l In case the merged entity becomes a status of such foreign holding and certify
“Significant Market Power” (SMP) post that the foreign investment is within the
merger, then the extant rules & regulations ceiling of 74% on a half yearly basis.
applicable to SMPs would also apply to the l The majority Directors on the Board
merged entity. TRAI has already classified including Chairman, Managing Director
SMP as an operator having market share and Chief Executive Officer (CEO) shall be
greater or equal to 30% of the relevant resident Indian citizens. The appointment to
market. these positions from among resident Indian
In addition to M&A guidelines, DoT has also citizens shall be made in consultation with
issued guidelines on foreign equity participations serious Indian investors.
and management control of telecom companies. l The merger of Indian companies may be
The National Telecom Policy, 1994 (NTP permitted as long as competition is not
94) provided guidelines on foreign equity compromised as defined below:
participation and as revised by NTP 99 permitted
maximum 49% cap on foreign investment. “No single company/legal person, either
Recently by its order no. - 842-585/2005-VAS/9 directly or through its associates, shall have
dated 1st February, 2006 DoT has enhanced substantial equity holding in more than one
the FDI limit in telecom sector to 74%. The key licencee Company in the same service area for
provisions of these guidelines are as follows: the Access Services namely; Basic, Cellular and
Unified Access Service. ‘Substantial equity’ herein
l The total composite foreign holding
will mean equity of 10% or more’. A promoter
including but not limited to investments by
company/Legal person cannot have stakes
Foreign Institutional Investors (FIIs), Non-
in more than one LICENCEE Company for the
resident Indians (NRIs), Foreign Currency
same service area” Some exceptions have been
Convertible Bonds (FCCBs), American
provided to this guideline.
Depository Receipts (ADRs), Global
Depository Receipts (GDRs), convertible l The Licencee shall also ensure that any
preference shares, proportionate foreign change in shareholding shall be subject to
of economic reforms, sale of most consumer roll out a network in a circle takes minimum 6
durable goods has not exceeded Rs. 60 million, months to 1-year time. The industry is also resort-
whereas telephone penetration has already ing to site and infrastructure sharing with other
crossed the Rs. 120 million mark and is all set to operators to reduce its capital expenses and op-
cross 150 million mark by December 2006 and erating expenses cost and optimise profitability.
Rs. 250 million mark by 2010. This huge expansion Human Resource: The dovetailing of human
is possible only with higher focus on rural resources of the acquired company into the
telephony, bridging the digital divide and higher culture of parent company has significant
allocation of network and funds to rural areas importance in any M&A deal and can even spoil
which are not so rewarding in terms of ARPU. a deal if not properly managed. It is now an
Spectrum: Spectrum is turning out to be the established principle that local leaders decide
biggest bottleneck for Indian mobile operators as the success or failure of a cross boarder deal. The
they face network problems, poor voice quality savvy acquirer retains competent local leaders
and call dropping. GSM operators initially get 4.4 and dangles incentives and awards to align
MHz of spectrum while CDMA operators get 2.5 their personal interest with that of the merged
MHz spectrum. In case of GSM operators with 10 entity. Premium is placed for target companies
lakh or more subscribers, they are eligible for 10 which have strong management team in place,
MHz spectrum, while CDMA operators get 5 MHz lower manpower base and higher employee
for 10 lakh subscribers. Since CDMA technology productivity. Some benchmarks used in this
carries the voice in small packets, it can carry regard are – Number of customers per employee,
about five times more traffic and hence has a Revenue per employee per month etc. Majority
lower spectrum allocation. of the telecom companies resort to outsourcing
However, as the number of mobile users of routine and non core activities and reduce
is growing at an amazing rate of 4 million per number of “on roll employee” to attract better
month), spectrum is falling short of requirements. valuations. Hence, it is essential to make an
Thus, the foreign investors prefer to acquire an assessment of the off roll and outsourced staff
existing operation to ensure ready availability of involved in a telecom operation to ascertain the
spectrum, instead of applying for a new licence true operational efficiency and real manpower
where spectrum allocation from DoT is really a cost.
challenging task. The Government is also taking Brand value: In most cases, where the
effective steps to get approx 40 MHz spectrum acquisition is for majority control, the foreign
vacated from Indian defense services which will investor is likely to introduce its own brand in
give a fresh lease of life to spectrum starved India instead of local brand. Hence, generally
market. This will be a key driver for all future M&A no value is placed on brand related expenditure
in India. amortised or any goodwill. However, where the
Network roll out: Network roll out is a night- investor takes minority stake and the brand
mare for telecom operators. It is more complex stabilised by the controlling local partners has
for a foreign operator who may not be conversant become popular, brand value plays an important
with local conditions. Network roll out involves role in valuation.
Right of way (ROW) approvals, coordination with Better margin possibility: Across Asia-Pacific,
local government departments, acquiring BTS be it China, Indonesia, Philippines, Thailand or
and BSC sites on rentals, acquiring municipal and Australia, operating margins (EBITDA) average
local approvals to set up tower and antenna, ob- 40% - 60%, which are considerably higher than
taining electrical connection for the sites, import the mid-30% for Indian telecom operators. The
of equipment, installation of tower, equipment EBITDA margin of Bharti Airtel at 37% is the
and shelter, SACFA and TEC approvals, integra- highest among all telecom operators whereas
tion of various sites and final launch of services for other operators it ranges from 11% to 25%.
in a geographical area etc. Generally the time to Thus, the scope for enhancing margins is fairly
significant in Indian market since Government Controlling stake; d) Whether the valuation of
levies, licence fees, etc. are likely to come down to entity on per sub base is appropriate; e) Whether
give further fillip to teledensity. The Government the EV/EBITDA ratio is in line with Industry trend.
is also providing Universal Service Obligation The list of these factors is endless.
(USO) support to operators to expand their Enterprise value (EV) refers to the market
network in rural areas. capitalisation of a company plus debts. When an
The foreign investors continue to look at investor acquires a company, it takes over not
India to spread their market. In the initial years, only the assets of the company, but also assumes
the number of operators in each circle were the liability to pay the existing debts and liabilities
limited to four which was a major entry barrier. of the company. Thus, Enterprise value is the sum
Further the entry fee for acquiring a licence was total of all fair value of assets and the liabilities of
also high. But over the years, the DoT has been the acquired entity. The key performance metrics
consistently liberalising entry norms and making to evaluate the EV are:
market access easier for foreign investors with
a) EV / EBITDA ratio: This ratio reflects number
the ultimate objective of benefiting consumers.
of years the unit has to yield operating profit
THE VALUATION OF A TELECOM LICENCE (EBITDA) to return the basic investment
made by the Investor. This ratio is in the
George Bernard Shaw had once said, nature of PE ratio from the viewpoint of a
“Economists know the price of everything, but retail investor and varies from Industry to
the value of nothing.”This saying is aptly reflected industry. In telecom Industry, most of the
in case of telecom valuation also. The acquirer deals struck in the past couple of years have
pays hefty valuation to acquire an entity and
been at EV/EDITDA ratio of 6-10 times.
the “Business value” placed is much higher than
“Accounting value”. b) EV/Revenue Ratio: This ratio indicates
number of years required to generate
The local promoters strive hard to enhance
the enterprise value of their project by adopting revenue to return the investment price paid
a multi pronged strategy. This involves a careful by the acquirer. In one way it can be likened
incubation of network across the entire circle, to pay-back period. EV/Revenue ratio is on
hiring a strong management team, installing an average five or less.
robust billing system, well oiled channel partner c) Per subscriber EV (EV/number of acquired
network and above all, an aggressive selling subscribers): This ratio represents value
strategy to build a critical mass of customer placed by the acquirer on subscribers
base. In their aggression to inflate enterprise acquired along with complete network
value, some operators end up creating “phantom and infrastructure. Smart acquirers on the
subscribers” to attract better valuation. Phantom lookout prefer to pay a premium for taking
subscribers refer to low value prepaid cards, over an existing operation say US$ 450 per
which are sold by channel partners to unwilling
subscriber as against network rollout which
end users. These cards are not likely to yield
costs even less than 1/3rd cost @ US$ 100.
much revenue to the operator, but just retained
As we would see later, the per subscriber
as customers to show an inflated subscriber base
and fetch higher valuations. rate varies from US$ 400 to US$ 1000. A
company earning higher Average Revenue
The Investment banker has to decide what Per User (ARPU) is likely to command better
is being valued – a) Whether its a valuation of per subscriber rate. A better rate is also
company’s equity or its assets; b) Whether the dependent on other factors like Churn ratio,
company is being valued as a going concern with VAS revenue, type of circle, average life
all its assets and liabilities or is under liquidation; cycle of customer, subscriber acquisition
or c) Is it a valuation of minority interest or a cost, quality of customers etc. An indicative
Enterprise value can also be computed The valuation of state owned Bharat Sanchar
by multiplying the subscriber base of the Nigam Limited (BSNL) is estimated to be US$ 30
company with the per subscriber rate. Billion one of the highest in India. On a global
For example, if the subscriber base of a scale, China Mobile has emerged as the world’s
telecom operator is 1,00,000 customers most highly valued telco with enterprise value
and the applicable per subscriber rate for of US$ 131.46 billion, followed by Vodaphone at
this category of operator is US$ 400, then US$ 123.11 billion as on July 2006.
the indicative enterprise value will be US$ From the table, readers can find that average
40,000,000 (US$ Forty million). valuation per subscriber ranges from US$ 400
M&A – CASE STUDIES to US$ 550 which in turn is based on a variety of
factors including Average ARPU, type of circle,
The first M&A deal in India was the sale of competition in the circle, Category of operator—
Mumbai licence by Max group to Hutchison whether only a Mobile service provider or
Whampoa group of Hong Kong. The deal fetched an integrated telecom player (like Bharti and
over half a billion dollars for Max group and was Reliance) etc. Valuation is generally lower in case
touted as a major success for Indian entrepreneur the acquirer takes a minority stake as against
in telecom venture. This followed a series of M&A controlling stake. Similarly, valuation also suffers
in subsequent years as stated hereunder. Some if the target company is not listed and hence has
of the other high profile deals were Vodaphone’s lower liquidity (as in case of Idea, Hutch etc). As
acquisition of 10% equity in Bharti in 2006 for a thumb rule, suggested by one economist, the
US$ 1 billion, Maxis acquisition of Aircel at differential for non liquidity of non listed entity
enterprise value of US$ 1 Billion, Birla Group’s could be as high as 20% -25%.
acquisition of Tata’s stake in Idea Cellular.
While most of the GSM operators resorted
Interestingly some of the high profile investors to M&A in order to achieve growth, Reliance
who had sold their stake around year 2000 are Infocomm did not go for inorganic route and
now reentering India like Telekom Malaysia instead rolled out a green field project. This was
(exited India in 2000 from Kolkata licence and also due to the fact that Reliance had adopted
recently acquired 49% stake in Spice Telecom) CDMA technology and was able to roll out the
and Vodafone (exited India in 2003 from RPG network at much lower cost as compared to GSM
Cellular Chennai and recently acquired stake in network.
Bharti).
The author also closely followed the sell-off, ac- DUE DILIGENCE AND DIAGNOSIS
quisition, resale and reacquisition by Indian Pro- The due diligence exercise gives the investor
moters as a case study. In April 1998, Max group a deep insight into financial and operational is-
had sold its stake in Mumbai licence to Hutchison sues of the target company. If these issues are
Telecom for US$ 560 million. Somewhere along not properly analysed, it can lead to serious inte-
the way Max group again picked up a small stake gration issues, while by that time the merchant
of 3.16% in Hutch and resold it to Essar Group in bankers who have assisted in the acquisition may
October 2005 for US$ 147 million. Max India has have left the scene. Some of these due diligence
staged another comeback in Hutch by acquiring areas are:
an 8.33% from Kotak Mahindra Bank for Rs. 1,019
crore in 2006. This second return to the telecom Strategic and Business due diligence:
business reflects the buoyant conditions in tele- This includes careful analysis of current market
com sector. share, planned market share, quality of existing
customer base, revenue mix, average ARPU in the
The table on the next page gives a bird’s eye service area, per minute revenue (RPM), review
view of major M&A deals in India and the key of marketing strategy, customer care philosophy,
indicators like per sub value, enterprise value ability of existing channel partners to promote
etc.
the services and withstand competition, reason customer care system, its interface with switch
for low performance of the target company, for seamless flow of data on activation through
synergies which are likely to be enjoyed on front end, customer grievance resolution
acquisition, likelihood of entry of new competitors mechanism, ease of customer interaction from
in the licenced area, strategic initiatives needed call centre, reporting mechanism for pending
to establish market leadership etc. customer queries and its escalation), IT system,
Technological & Integration issues: The order fulfillment process, etc.
technical due diligence includes review of Financial & Commercial due diligence:
technical aspects, telecom network technology The financial due diligence is likely to give deep
adopted etc. This helps the investor to find out the insight into operations, which otherwise would
quality of network assets, whether the coverage is not be possible. Some key issues to be analysed
adequate or not, their maintenance and upgrade under this head would include: accounting
status, status of integration of various systems policies on intangibles and deferment, contingent
like switch, non compatibility of existing network liabilities disclosed and undisclosed, statutory
equipment if any with the current system of and workmen dues, finance cost and possibility
acquirer resulting their obsolescence and write of debt restructuring, capital structure, vendor
offs, value added services, billing system (Whether and other dues and reason for delayed or non
the billing system can be interfaced with the payment, list of all contracts and agreements and
system of acquirer, the upgrade status of billing the review of all rates and terms, possibility of
system, does it interface with financial systems), renegotiation of major commercial agreements
customer care system (database structure in and quantification of possible saving, details of
pending export obligations under EPCG rules, WHETHER M&A IN INDIAN TELECOM WERE
details of bank guarantees issued, pending SUCCESSFUL
cost saving measures initiated in the company,
A merger to be successful should create new
internal control measures and processes, internal
capabilities, offer better value proposition to
audit reports, fixed assets verification reports,
the combined entity’s customers and above all
valuation reports if any, etc.
enhance shareholders’ value. Empirical studies
Secretarial & Legal due diligence: The prove that M&A brings with it the advantage
acquirer also carries a detailed legal due of synergies to the operators and in majority of
diligence of the various approvals obtained by cases results in immense increase of shareholders
the target company to understand possible value. M&A in Indian telecom industry has also
instances of violations if any and the quality of benefited other stakeholders i.e. customers,
statutory compliances. This includes a review of Indian economy and society at large.
statutory approvals required, approvals taken
M&A have acted as catalyst to stupendous
and their renewal status, Minute books of AGM,
growth in teledensity to 14% in 10 years (1995
EGM, Board and committee meetings, review
-2006), as against 2% in 48 years (1947-1994) of
of shareholders agreement, Memorandum and
independence. According to a study conducted
Articles, statutory clearances for all investments
by the reputed international agency, OVUM on
made till date, review of all major agreements
“The economic benefits of mobile services in
(with lessors for BTS/BSC/MSC sites, collection
India” on behalf of Cellular Operators’ Association
and recovery agents, channel partner agreement,
of India, it was found that mobile sector has
roaming agreements, network services providers,
generated 3.6 million jobs directly or indirectly
VAS services, DoT licence agreement), listing of
and the same will rise by at least 30%. Similarly
all legal cases filed by and against the company
the Mobile industry contributes over Rs. 145
and current status, list of statutory compliances,
billion per annum by licence fees, spectrum
list of all statutory liabilities (status of payment
fees, import duties, taxes, etc. Taking the OVUM
of various dues like PF, ESI, licence and spectrum
findings on the base of 48 million subscribers
charges, interconnect payments, liquidated
in January 2005, COAI has estimated that at a
damages if any levied by licensor), list of all IPR
mobile subscribers base of 200 million in 2007,
rights, IPR violation issues etc).
the industry would contribute over 10 million
Human Resource issues: The investor jobs and over Rs. 500 billion annual revenue to
analyses the average salary of the employees, the Government.
ratio of outsourced employee to total employees,
From foreign investors’ perspective, they have
salary range vis a vis Industry trend and chances
immensely gained from investing in India. As
of salary increase to be made. The investor also
per recent news, out of Hutchison’s total global
tries to find out whether any Golden Parachute
revenue of Rs. 13440 crores, over 45% comes
has been issued to senior management which
from India which is no mean achievement. Indian
has to be borne by the merged entity.
promoters who commenced their telecom
The results of due diligence exercise help to operation on a small scale in few circles, gained
unearth startling facts and assist the investment immensely on sale of their stake to foreign
banker to revise the valuation. From the acquirer’s investors. In fact, some of the world’s largest
perspective, some change management telecom companies, who have left India with
problems can be avoided by solving them before a bitter experience a few years ago like British
the deal closes. For example, if the due diligence Telecom, Vodaphone, France Telecom, Telekom
reveals that the workforce of the target company Malaysia, Telestra Australia are all set to return
is inflated, then he may insist for its rationalisation even as minority shareholders on witnessing
as a precondition to deal closure. telecom success story.
troduced in 2004 provides for full exemption from approval u/s 10(23G). However this section has
Income Tax for long term capital gains (LTCG) been withdrawn i.e. AY 2007-2008 after a 10-
provided a) The capital gain arises on transfer of year period and henceforth this incentive is not
shares of listed public companies; b) At the time available to the telecom sector.
of transfer, the transaction is chargeable to secu- Thus, proper tax planning for Indian and
rities transaction tax (STT). In case of short term foreign investors to save their tax liability on future
capital gains on listed securities (arising in less capital gains liability pose a great challenge. We
than 12 months), on fulfilling same conditions, will now discuss the Mauritius angle, through
Indian investor has to pay tax on STCG @ 10% which most of the foreign shareholding are
u/s 111A. Twelve months holding period is appli- routed.
cable only for listed securities, in case of unlisted
securities, the minimum holding period has to be The Mauritius connection
36 months, before it qualifies as long term.
The scenic Mauritius has emerged as the
However, majority of telecom holdings as favourite landing point for foreign investors
discussed in this article are not listed securities. for FDI in Indian telecom companies. Mauritius
Hence they are subjected to taxation under the accounts for more than a third of the aggregate
regular provisions of Income Tax Act. Thus in FDI inflows. India’s tax treaty with Mauritius
case of capital gain arising from sale of shares provides exemption from capital gain arising
of unlisted entities, the taxation is as follows: out of Investment in India made by a Mauritius
a) In case of short term capital gain, the gain is resident company. A common strategy adopted
included as income from other sources/ business by foreign investors is to hold the shares of
Income as the case may be and charged to tax at Indian operating company through Mauritius
full rate; and b) In case of LTCG, the gain is liable based special purpose vehicle (SPV). In case of
to tax @ 20% u/s 112. exit, these SPVs are sold to foreign investors who
land in Mauritius. Board level changes are made
Section 10(23G) in such SPV and new investors take control of
This section was introduced in 1995 with an the SPV and nominate their representative on
objective of promoting investment in telecom the Indian telecom company. In such a case, in
sector by Indian and foreign investors. Telecom accordance with DTAA with Mauritius, no capital
operators, whether listed or not were required gains tax is levied on the foreign investor. No
to get the approval of Ministry of Finance u/s transfer is needed to be recorded in the register
10(23G) on submission of requisite details. In of transfer of Indian telecom company as the
case a telecom entity was approved under this same Mauritius SPV continues as shareholder.
section, the investors in such entity were entitled, Let us consider sale of direct holding in an
inter alia, tax exemption on long term capital, Indian telecom company by a foreign investor.
interest on long term finance and dividend. The Say AB (Mauritius) Limited (an SPV and resident
approval was given by Ministry of Finance (MOF) of Mauritius and referred as AB) holds 25% share
on year-to-year basis or for a block of years based capital of CD India Telecom Limited. AB is a 100%
on satisfying eligibility criteria. It is pertinent to subsidiary of J Inc, USA. If J Inc wants to transfer
note that approval under this section is provided
its full stake to another foreign entity say EF (UK)
only to the operating company which owns
Plc, UK then AB will sell all shares held in CD to EF.
telecom network and infrastructure and hence
EF will lodge shares of AB, to the Indian company
capital gain exemption was available in respect
for registering them in his favour. The capital gain
of capital gain arising on direct shareholding. In
arising to AB on sale of EF is an offshore transaction
case of indirect holding, routed through chain
and will not attract capital gain taxation in
holding, benefit of this section would not be
Mauritius or India due to DTAA with Mauritius. The
available.
directors nominated by AB are withdrawn and the
Most of the telecom operators had obtained new directors nominated by EF will take Board
position in CD’s Board of Directors. (a) Such a company is not listed on a recognised
Now we will consider sale of indirect or stock exchange of the contracting state; or
beneficial holding. Say AB Mauritius Limited (b) its total annual expenditure on operations
(an SPV and resident of Mauritius) holds 40% in that contracting state is NOT equal to or
share capital of CD India Telecom Limited. The more than Rs. 5 million in the respective
shareholders in AB Limited are A, Inc US (51%) contracting state as the case may be, in the
and B Limited, Japan (49%). if A Inc and B Limited immediately preceding period of 24 months
want to reduce their joint holding to 20% and sell from the date the gains arise.
balance 20% to a third investor say EF plc UK. Then
A Inc and B Limited, will transfer their holding in This amendment once approved is likely to
AB to EF Plc and EF Plc will be inducted as another put a spanner in the investment plan of foreign
shareholder of Mauritius entity. Thus, by investing investors who have long utilised the loophole in
in AB Mauritius, EF obtains a beneficial holding in DTAA with Mauritius without sharing any benefit
CD India equal to 20% and right to nominate 1/5th of capital gain either with Government of India
of number of Directors on the Board of CD India. or Mauritius.
Since, this transaction does not involve transfer It is likely that foreign investors, who have
of shares of an Indian company, no Capital Gain used Mauritius as a safe route for Indian FDI,
Taxation liability arises in India.
India’s tax treaty with Mauritius has been an
eye sore with Indian revenue authority for long. Mauritius accounts for more than a
The controversy started after the Central Board third of the aggregate FDI inflows.
of Direct Taxes (CBDT) issued a circular (No. 789 India’s tax treaty with Mauritius
dated 13/4/2000) clarifying that a certificate of provides exemption from capital
residence issued by Mauritius will constitute gain arising out of Investment in
sufficient evidence for accepting the status of India made by a Mauritius resident
residence as well as ownership for applying the company. A common strategy
provisions of the tax treaty. The circular also adopted by foreign investors is to
clarified that the test of residence would also hold the shares of Indian operating
apply to income from capital gains on sale of company through Mauritius based
shares. Thus, FIIs which are resident in Mauritius special purpose vehicle (SPV).
would not be taxable in India on income from
capital gains arising in Mauritius country on sale
of shares. will take necessary steps to ensure compliance
of the proposed guidelines by a) offloading the
The above circular was declared invalid and minimum stake required for listing on Mauritius
quashed by the Delhi High Court (Shiv Kant Jha based stock exchanges and listing of their
versus Union of India, (2002) 256 ITR 563). But the SPV b) Maintaining office infrastructure and
Hon’ble Supreme Court reversed the decision incur operational expenditure as per proposed
of the Delhi HC and declared the circular valid guidelines.
(Union of India versus Azadi Bachao Andolan,
(2003) 263 ITR 706). Licence fee on sale proceeds of licence:
There are moves to bring the Mauritian tax As per current licensing guidelines, telecom
treaty at par with Singapore treaty whereby, a operators have to pay licence fee on Adjusted
resident of a contracting state (read Mauritius) Gross Revenue (AGR) which includes non
shall be deemed to be a shell/conduit company operating revenue like revenue from handset
and exemption from Capital Gains tax will be sale, Interest revenue etc. There is no clarity
denied to such a company, if: whether the sale proceeds of a telecom licence
will be included within the levy of AGR and l Management Audit on telecom Industry
attract licence fee. process like billing process, Revenue
In this regard, let’s review the case of Shyam Assurance process, Collection and Credit
Telecom Ltd (a DoT licencee itself), Holding control process, Bill delivery and returned
company of Hexacom (Rajasthan Licence) who bills management.
sold its Hexacom operation. The following l Assignments on Internal Controls and Six-
extract from the Annual report of Public listed sigma implementation.
company Shyam Telecom (Year 2006, page 53) is
l Certifications under Income tax law.
self explanatory: “The company sold its holding in
HIL to Bharti Televenture Limited for a consideration As the telecom operators consolidate their op-
of Rs 1751.87 Million. ……With respect to Income eration, they are likely to outsource more and more
arising on transaction referred above, the company operational and financial activities. Chartered Ac-
based on a legal opinion believes that it is not countant firms which have attained economies of
covered under the definition of Adjusted Gross scale and have knowledge base, operational skills,
Revenue, as inter alia, such revenue do not accrue IT savvy team, cost effective manpower support
out of operation licenced or require to be licenced are likely to see a vista of opportunity ahead of
by DoT… The issue is covered under generic petition them in India’s telecom Industry.
filed by Association of Basic Telecom operators
(ABTO) with TDSAT contesting the inclusion of non CONCLUSION
telecom related service revenue in the AGR which India needs a whopping US$30 billion to meet
is pending resolution. In view of the legal opinion 22% teledensity target (250 million telephones)
obtained by the company and the above petition by the end of 2007 as set by DoT. Government’s
filed by ABTO with the TDAST, the company is of the decision to raise the foreign investment limit to
opinion that no revenue share is payable from sale 74% is expected to spur fresh round of mergers
of above investments and has accordingly made no and takeovers in India. The sector has slimmed
provisions in its books of accounts.” from more than 20 carriers to 5-6 major players
in 2006 and telecom pundits believe that a final
EMERGING OPPORTUNITY FOR CAs round of consolidation to churn the number
of players is in the offing. The possibility of
Mergers and Acquisitions in telecom sector
realignment of shareholding structure in existing
have showered a boon for professionals
licences and entry of new investors also cannot be
including Chartered Accountants and finance
ruled out. The sector thus represents humongous
community in general. As per an industry opportunity waiting to be tapped by Indian and
estimate, the telecom industry is likely to foreign conglomerates.
provide cumulative employment at various
levels to over 4,000 Chartered Accountants to Critics claim telecom mergers reduce
support its growth plans. competition and promote monopoly. In reality,
these mergers are part of a healthy competitive
Some of the emerging area of practice for process and would foster innovation and bring
Chartered Accountant firms in telecom industry benefits to consumers.
include following:
Finally, the success of a merger hinges on how
l Business Process outsourcing like Financial well the post-merged entity positions itself to
reconciliations, Bills Processing, Collection, achieve cost and profit efficiencies. As Robert C
Bill delivery, Payroll outsourcing, Customer Higgins of University of Washington points out
refunds and Credits, address and identity “careful valuation and disciplined negotiation are
verification, Revenue accounting, Back end vital to successful acquisition, but in business as
compliant resolution on financial issues in life, it is sometimes more important to be lucky
etc. than smart.” r