TMI Blog2014 (3) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... sion in regarding the stay application – thus, prima facie view, the assessee appears to have a good case - Though no case of financial hardship stands made out, the tax demand raised is itself at 22600% of the returned income of ₹ 10.65 crores, assessee directed to deposit ₹ 200 crores in two installments - stay granted partly. - ITA No. 7514/Mum/2013, S.A. No. 330/Mum/ 2013 - - - Dated:- 27-12-2013 - B. R. MITTAL AND SANJAY ARORA, JJ. For the Appellant : A.M. Singhvi, Ms. A. Dutt and Pawan Kumar For the Respondent : M.L. Perumal ORDER:- PER : Sanjay Arora This stay petition by the Assessee is in respect of its captioned Appeal before the Appellate Tribunal against its assessment u/s. 143(3) r.w.s. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be seen that there is absence of jurisdictional facts for the impugned adjustment by the Revenue. Furnishing a chart titled 'ownership structure chart', bearing a maze of shareholdings, it was submitted that the Revenue has inferred an assignment by the assessee, an Indian company, of the option to purchase the shares of the group companies of Mr. Asim Ghosh and Mr./Mrs. Analjit Singh, either by itself or by any affiliate /nominated person, per an agreement dated 05.07.2007 (Volume 2, pgs.669-697), which we may call the '2007 Framework Agreement'. This was necessitated or required to be executed due to the Share Purchase Agreement dated 11.02.2007 (SPA/Volume 2, pgs.472-591) between Hutchison Telecommunications Intern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said SPA. These call options were taken into account by the Revenue in reckoning the 67% (approx) equity interest in the Indian operating companies acquired by the Vodafone group from the Hutchison group. The apex court has examined the very same set of agreements in its elaborate and celebrated decision in Vodafone International Holdings B.V. v. Union of India [2012] 341 ITR 1 (SC) (Volume 8, pg.2696). In sum, it held that the shares transferred between 'D' and 'C' did not amount to transfer of assets of 'F'. This was as, firstly, a share transfer is just that, i.e., the transfer of a share or interest in a company, and not of the underlying assets held by it (i.e., the company whose shares are being transferre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel for the Revenue argues of a change in law, i.e., by Finance Act, 2012 (in section 9 of the Act, w.r.e.f. 01.04.1962), he would continue, the same shall have no bearing in the matter in the absence of satisfaction of the condition precedent, i.e., of an assignment, either ipso facto or ipso jure. The amendment would, thus, be of no assistance to the Revenue. The review petition by the Government of India against the decision by the apex court has also been rejected by the hon'ble court vide its order dated 20.03.2012. The DRP has discussed this issue at para 11.3 of its order dated 30.09.2012 (at pgs. 410-411) more particularly per (clauses (iv), (v) and (vii) thereof), though it had, he argued, no business not to follow the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... either necessary nor in fact proper to go into the relative merits of the respective cases of both the sides. The authorities below have passed detailed, reasoned orders, which cannot be ignored, and in any case cannot be said to be arbitrary. The apex court had itself directed payment of 25% of the tax demand and provision of bank guarantee for the balance prior to hearing the petitions in the case of Vodafone India Holdings BV(supra). No case for financial hardship has been made out, so that the assessee be required to pay a reasonable sum, not less than 50% of the outstanding demand, as a condition for the grant of stay, coupled of-course with an early hearing of its appeal by the tribunal. 2.3 In rejoinder, the ld. AR would submit th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. On the Bench expressing that the interest of the Revenue shall in any case have to be secured, he agreed for furnishing corporate guarantee/s inasmuch as a bank guarantee would entail an almost equivalent deposit of liquid funds with the bank. 3. We have heard the parties. As made abundantly clear during the course of the hearing, we are not inclined to dwell on the merits of the case at any length, and our objective in the instant hearing was to have a snap shot of the case. This is as our purview at this stage of the proceedings is only to balance the conflicting interests of the opposite sides. Besides, even as explained thereat, expressing a view either way may cause prejudice to either or even both the parties. And, besides, ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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