TMI Blog2011 (6) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... Seshachala for the Respondent. JUDGMENT Sabhahit, J. This appeal is filed by the petitioner in W.P. No. 7716/2011 being aggrieved by the order dated 24-3-2011, wherein the learned single Judge of this Court has declined to interfere with the show cause notice issued by the first respondent dated 12-10-2009 as per Annexure 'B' to the writ petition. 2. The appellant herein filed W.P. No. 7716/2011 averring that the petitioner is a non-resident company limited by shares and is incorporated under the laws of Cyprus having its principal office at 66, Ippocratous Street, P.C. 1015 Nicosia, Cyprus. Respondents 1 and 2 are the Income-tax Authorities under section 116 of the Income-tax Act, 1961 (hereinafter referred to as 'the Act'), against whose action, the writ petition was filed. It is averred that the first respondent issued a show-cause notice as per Annexure 'B' to the writ petition dated 12-10-2009 regarding proceedings under section 201(1) and 201(1A) in respect of indirect acquisition of 51 per cent shares of Sesa Goa Limited without deduction of TDS. The petitioner contended that the said show-cause notice is not a show cause notice at all and the Assessing Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .If you feel that the facts stated above are not correct, you are requested to give your version of facts with full corroborative evidence documentary or otherwise. Your objections/reply/details may be furnished before the next date of hearing as indicated in the last para of this letter." Regarding the other proposal made by the Assessing Officer also, the learned senior counsel has taken us through the contents of the show-cause notice and submits that the Assessing Officer has already decided that there is a transfer under section 2(47) of the Act and attracts capital gains tax under section 45 of the Act, The learned senior counsel, in support of his contention that the transaction in the instant case cannot be considered as transaction under section 2(47) of the Act and does not attract capital gains tax, has relied upon the decision of the Hon'ble Supreme Court in Oryx Fisheries (P.) Ltd. v. Union of India [2010] 13 SCC 427, wherein it is observed as under: "31. It is of course true that the show-cause notice cannot be read hypertechnically and it is well settled that it is to be read reasonably. But one thing is clear that while reading a show-cause notice the person who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Supreme Court, it is clear that no useful purpose would be served by relegating the appellant to give reply to the show cause notice and directing the Assessing Officer to decide the question as the first respondent has already predetermined the matter and wherefore, the writ appeal may be allowed by setting aside the order of the learned single Judge and show-cause notice may be quashed. 7. The learned counsel appearing for the respondents submitted that what is challenged by the appellant in the writ petition is only the show cause notice. Earlier, in respect of M/s. Sesa Goa Limited, show-cause notice dated 22-9-2008 had been issued by the Deputy Director of Income-tax (International Taxation) Circle - 1(1), Bangalore. The said show-cause notice was challenged by M/s. Sesa Goa Limited in W.P. No. 1386/2009 and in the said case, the following order was passed by this Court on 13-3-2009: "10. As the respondent has sought for permission to withdraw the notice, particularly, as further proceedings after issue of the notice had been stayed by this court, the interim order granted earlier is vacated and the writ petition is dismissed with the observation that it is open to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ince the jurisdictional issue can be decided by this Court, the same may be decided and if the Court comes to the conclusion that the appellant should be relegated to the first respondent-authority to show cause, direction may be given to the first respondent to decide the jurisdictional fact as a preliminary issue with liberty to the appellant to approach this Court if it is aggrieved by the finding on the jurisdictional fact as observed by the Hon'ble Supreme Court in Vodafone International Holdings B.B.'s case (supra). 9. We have given careful consideration to the contentions of the learned counsel appearing for the parties and scrutinized the material on record. 10. The material on record would clearly show that what is challenged in the writ petition is only a show-cause notice issued by the first respondent and the said notice pertains to a transaction, wherein the appellant herein accepted the offer made by Vedanta Group and the acquirer companies and the offer was made to the retail shareholders of Sesa Goa Limited. As per the offer, the Vedanta Group and the acquirer Companies undertook to buy additional 15 per cent shares of Sesa Goa Limited from the retail shareholde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in view of the decision of the Hon'ble Supreme Court in Vodafone International Holdings B.V.'s case (supra), the interest of the appellant can further be safeguarded by directing that the appellant shall appear before the first respondent by raising jurisdictional fact and the jurisdictional fact shall be tried as a preliminary issue and if the appellant is aggrieved by the finding on the preliminary issue relating to jurisdictional fact, it is open to the appellant to approach this Court under article 226 of the Constitution of India as observed by the Hon'ble Supreme Court in Vodafone International Holdings B.S.'s case (supra). We hold that the impugned order passed by the learned single Judge is justified and the show-cause notice issued by the first respondent dated 12-10-2009 (Annexure 'B' to the writ petition) does not call for interference in exercise of writ jurisdiction of this Court. However, it is made clear that the appellant shall be entitled to raise the jurisdictional fact in the objections statement to be filed by the appellant to the show-cause notice and if the jurisdictional fact is raised by the appellant, the same shall be tried as a preliminary issue by the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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