2018 (5) TMI 1096

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....e Shri Saurabh Soparkar for the appellant-assessee and Shri Kamal Trivedi and Shri Manish Bhatt, learned senior counsel for the Department extensively for the purpose of admission of Tax Appeal as well as deciding this Civil Application for stay, pending the appeal. Tax Appeal is admitted framing several questions. For the interim order that we propose to pass, we would cite brief reasons : Tax Appeal arises out of judgment of the Income Tax Appellate Tribunal, Ahmedabad ["Tribunal" for short] concerning taxing the assessee for capital gain applying transfer pricing provisions contained in the Income-tax Act, 1961. The issue arises in the background of complex web of corporate structure and transfer of shares and controlling rights over ....

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....R 1 [SC] and [iii] Vodafone India Services P. Limited v. Commissioner of Income-tax & Anr., reported in [2016] 385 ITR 169 [Bom]. In the case of Vodafone International Holdings B.V v. Union of India & Anr. [329 ITR 126], the Bombay High Court had examined certain transactions of transfer of shares by a nonresident to another non-resident company in the context of charging capital gain tax in India and upheld the Revenue's view point. This decision of Bombay High Court was carried in appeal by the assessee. The Supreme Court in the case of Vodafone International Holdings B.V vs. Union of India & Anr. [341 ITR 1], while reversing the judgment of the Bombay High Court had held that the controlling interest in the company is an incident of o....

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....rol or any other rights whatsoever." Likewise, Explanation 2 was added to Section 2 [47] which defines the term "Transfer". Such explanation reads as under :- "Section 2 [47] Explanation - 2 : For the removal of doubts, it is hereby clarified that "transfer" includes and shall be deemed to have always been included disposing of or parting with an asset or any interest therein, or creating any interest in any asset in any manner whatsoever, directly or indirectly, absolutely or conditionally, voluntarily or involuntarily, by way of an agreement [whether entered into in India or outside India] or otherwise, notwithstanding that such transfer of rights has been characterized as being effected or dependent upon or flo....