JUDGMENT judgment of court was delivered by M. S. Sanklecha J.-This petition under article 226 of Constitution of India challenges order dated January 30, 2013, passed by Transfer Pricing Officer ("the TPO") under section 92CA(3) of Income-tax Act, 1961 ("the Act") and draft assessment order dated March 28, 2012, passed by Assessing Officer. assessment year involved is assessment year 2009- 10. Mr. Pardiwala, learned senior counsel appearing for petitioner, states that after having filed this petition on issue of jurisdiction as matter of abundant caution objections to draft assessment order were filed before Dispute Resolution Panel ("the DRP") on various issues including issue of jurisdiction raised in present proceeding. Mr. Pardiwala, learned senior counsel on instructions undertakes that objections filed with Dispute Resolution Panel in respect of issues raised herein would be withdrawn by them. Undertaking accepted. Therefore, challenge to jurisdictional issue, viz., jurisdiction of Revenue to bring to tax amounts received on capital account, namely, issue of equity shares to its non-resident associated enterprises under Chapter X of Act is being challenged only before this court. It is only after accepting undertaking given by petitioner that merits of issues raised in this petition are being considered. Mr. Percy Pardiwala, learned senior counsel appearing for petitioner, at very outset submitted that issue raised in this petition, viz., jurisdiction of Revenue to tax under Chapter X of Act capital account transactions not giving rise to income is no longer res integra in view of decision of this court in Vodafone India Services P. Ltd. v. Union of India [2014] 368 ITR 1 (Bom). (Vodafone IV). Mr. Dave, learned counsel appearing for respondent-Revenue, while accepting fact that issue raised in this petition is in principle covered by decision in Vodafone IV, yet submits that there are certain distinguishing features in this case which would warrant this court not extending benefits of decision in Vodafone IV to present petitioner. Before considering rival submissions, it would be appropriate to reproduce broad summary of findings in Vodafone IV as culled out in decision rendered in W. P. No. 589 of 2014 filed by Vodafone India Services Pvt. Ltd. v. Union of India on October 13, 2014 [2014] 369 ITR 511 (Bom) (Vodafone V). findings in Vodafone IV have been summarised in Vodafone V as under (page 515): "(i) sine qua non to apply Chapter X of Act would be arising of income under Act out of international transaction. This income should be chargeable under Act before Chapter X can be applied; (ii) definition of income does not include within its scope capital receipts arising out of capital account transaction unless so specified in section 2(24) of Act as income; (iii) There is no charge in Act to tax amounts received and/or arising on account of issue of shares by Indian entity to non-resident entity in sections 4, 5, 15, 22, 28, 45 and 56 of Act. This is as it arises out of capital accounts transaction and, therefore, is not income; (iv) Chapter X of Act does not contain any charging provision but is machinery provision to arrive at arm's length price of transaction between associated enterprises; and (v) Chapter X of Act does not change character of receipts but only permits re-quantification of income uninfluenced by relationship between associated enterprises." Brief facts leading to this petition are: (a) petitioner is affiliate of and belonging to Shell group of companies head quartered in Holland. (b) On March 27, 2009, and March 30, 2009, petitioner issued equity shares to its non-resident associated enterprises (AE). petitioner had issued in aggregate 85,88,34,369 shares to two of its non-resident associated enterprises at face value of Rs. 10 per share. (c) Along with its return of income for assessment year 2009-10 petitioner filed Form 3CEB (transfer pricing report) under section 92E of Act. In its Form 3CEB petitioner disclosed various international transactions with its associated enterprises. However, petitioner did not disclose issue of equity shares to its non-resident associated enterprises as it was of view that in absence of income arising it was not international transaction. (d) Assessing Officer in terms of section 92CA(1) of Act referred international transactions disclosed by petitioner in Form 3CEB to Transfer Pricing Officer. This was for purpose of computation of arm's length price (ALP) of transaction reflected in Form 3CEB. (f) Transfer Pricing Officer during course of proceedings before it noticed transaction of issue of shares by petitioner to its associated enterprises. Therefore, Transfer Pricing Officer issued show-cause notice dated January 24, 2013, to petitioner. above notice called upon petitioner to show cause as to why arm's length price should not be determined at Rs. 622 per share in respect of issue of equity shares by it to its non-resident associated enterprises at Rs. 10 per share. (g) On January 28, 2013, petitioner responded to above showcause notice dated January 24, 2013. In its reply petitioner, inter alia, pointed out that Chapter X of Act would have no application as transaction of issue of equity shares to non-resident associated enterprises would not give rise to any income. This for reason that transaction of issue of shares is on capital account not giving rise to any income. (h) On January 30, 2013, Transfer Pricing Officer passed impugned order under section 92CA(3) of Act holding that in view of Chapter X of Act, once transaction between parties is international transaction, adjustments to transfer pricing can be done even on capital account (balance-sheet items). impugned order of Transfer Pricing Officer held that shares were allotted to associated enterprises at price which was lower than arm's length price of issue of shares which resulted in short receipt of consideration. In above view, impugned order computes on basis of arm's length price, enhancement of issue price of shares from Rs. 10 per share to Rs. 183.44 per share and also charges interest on amount short received resulting in transfer pricing adjustment of Rs. 15,220 crores on above account. (i) Consequent to above, on January 30, 2000, itself, Assessing Officer issued show-cause notice to petitioner. By above notice, petitioner was called upon to explain why assessment should not be completed in terms of order dated January 30, 2013, passed by Transfer Pricing Officer. (j) petitioner responded to show-cause notice and amongst other contentions submitted that amounts received on issue of share capital including share premium is capital receipt and not chargeable to tax under Act. petitioner, in particular, assailed order of Transfer Pricing Officer on ground that in absence of any income arising, there could be no occasion to apply Chapter X of Act to transaction of issue of shares. (k) Notwithstanding above, on March 28, 2013, Assessing Officer passed draft assessment order under section 143(3) read with 144C(1) of Act. So far as primary contention of petitioner that no income arose on issue of equity shares to its holding company was concerned, same was negatived by holding as under: "Further, Transfer Pricing Officer can also carry out adjustment even if income was notional as section 2(24) of Incometax Act used inclusive definition of income. Hence, income of assessee would include income on account of adjustment for short receipt of price for issued additional share capital." draft assessment order dated March 28, 2013, makes adjustments as directed in order dated January 30, 2013, of Transfer Pricing Officer. At this stage petitioner approached this court. As pointed out above, it is agreed position between parties that decision in Vodafone IV would cover issue in principle. In fact, Mr. Dave, learned counsel for Revenue, does not dispute fact that issue with regard to chargeability to tax in respect of amounts not received on issue of shares to non-resident associated enterprises being on capital account stands covered so far as this court is concerned. However, Revenue reserves its right to contest decision of this court in Vodafone IV and V before hon'ble Supreme Court. Nevertheless, according to Mr. Dave, learned counsel appearing for Revenue, decision in Vodafone IV should not be applied in this case in view of following distinguishing features: (a) petitioner has alternative remedy of prosecuting its grievances with Dispute Resolution Panel. It is submitted that, in fact, petitioner has also filed application before Dispute Resolution Panel raising identical grievance. In these circumstances, this petition ought not to be entertained. (b) petitioner in its Form 3CEB had not disclosed its transaction of issue of shares to non-resident associated enterprises even though it is international transaction. This failure on part of petitioner to disclose same in Form 3CEB filed should by itself disentitle petitioner to any relief from this court; and (c) In present facts, issue of shares by petitioner to its nonresident associated enterprises value of Rs. 10 per share would in view of inter se change in shareholding amongst associated enterprises in petitioner would be covered by definition of international transactions as given in clause (e) in Explanation to section 92B of Act. This is so as it would amount to restructuring and/or reorganising of petitioner. In support attention was invited to paragraph 15 of affidavitin-reply dated September 23, 2013, which shows change in shareholding pattern amongst associated enterprises in petitioner during assessment year 2009-10. We shall now consider above submissions on behalf of Revenue. So far as availability of alternative remedy is concerned, petitioner has at beginning of today's hearing itself undertaken to withdraw its objection on issue of jurisdiction before Dispute Resolution Panel. This was accepted by us before considering issue on merits. Moreover, this petition was filed on April 24, 2013, challenging impugned orders dated January 30, 2013, of Transfer Pricing Officer and draft assessment order dated March 28, 2014, of Assessing Officer, on issue of jurisdiction. This issue has been decided in Vodafone IV and would be binding on all authorities within State till apex court takes different view on it. Therefore, in view of fact that Revenue does not dispute that issue on merits stands covered by decision of Vodafone IV it would serve no useful purpose by directing petitioner to prosecute its objections before Dispute Resolution Panel and Dispute Resolution Panel disposing of same in accordance with Vodafone IV. Thus, in present facts distinction sought to be made on ground of alternative remedy is not such as to warrant not entertaining petition. second distinguishing feature from that of Vodafone IV, as canvassed by Revenue, is that Form 3CEB in respect of transaction of issue of shares to its associated enterprises, is not disclosed as international transaction. This petitioner was obliged to do as transaction is international transaction. This was in fact done by petitioners in Vodafone IV. This stand by Revenue is little curious as in Vodafone IV Revenue contended that as petitioners therein had filed Form 3CEB in respect of issue of shares to its associated enterprise, they had submitted to jurisdiction of Chapter X of Act and cannot now contend that proceeding to tax such shortfall on capital account is without jurisdiction. In this case, exactly opposite stand is being taken by State. State is expected to be consistent and not change its stand from case to case. Be that as it may, petitioner herein had not disclosed transaction in Form 3CEB as, according to petitioner, it was not international transaction for reason that it did not give no rise to any income. fact that petitioner chose not to declare issue of shares to its non-resident associated enterprises in Form 3CEB as in its understanding it fell outside scope of Chapter X of Act now stands vindicated by decision of this court in Vodafone IV. If petitioner did not file particular transaction in Form 3CEB when so required to be filed, consequences of same as provided in Act would follow. However, mere not filing of Form 3CEB on part of petitioner would not give jurisdiction to Revenue to tax amount which it does not have jurisdiction to tax. Therefore, we do not find any substance in this objection also. last objection taken by Revenue was that in view of variation in shareholding pattern amongst different shareholders of petitioner during year clearly brought issue of shares within clause (e) of Explanation to section 92B of Act. In terms of above provision international transaction would include transaction of restructuring entered into by enterprise with associated enterprise. Mr. Pardiwala, learned counsel appearing for petitioner, points out that there has been no restructuring of organisation but there has been mere change in shareholding of different shareholders of petitioner. However, in present facts we need not examine this for reason that even if it is assumed that it is international transaction, jurisdictional requirement for Chapter X of Act to be applicable is that income must arise. In this case, admittedly following Vodafone IV no income has arisen. Thus, jurisdictional requirement for application of Chapter X of Act is not satisfied. As held in Vodafone IV, jurisdiction to apply Chapter X of Act would occasion only when income arises out of international transaction and such income is chargeable to tax under Act. issues raised in present petition are identical to issues which arose for consideration before this court in Vodafone IV. Therefore, following aforesaid decision we set aside order dated January 30, 2013, of Transfer Pricing Officer to extent it holds that arm's length price of issue of equity shares is Rs. 183.44 per share as against Rs. 10 per share as declared by petitioner and consequent deemed interest brought to tax on amount not received when benchmarked to arm's length price. Accordingly, we set aside draft assessment order dated March 30, 2013, to extent it seeks to bring to tax arm's length price of share issued by petitioner to its non-resident associated enterprises and also deemed interest which is sought to be brought to tax on ground of non-receipt of consideration equivalent to arm's length price by petitioner on issue of equity shares. It is further clarified that petitioner's objection before Dispute Resolution Panel filed on April 25, 2013, on all issues save and except issue covered by this order would be considered by Dispute Resolution Panel on its own merits. Accordingly, rule is made absolute in above terms. *** Shell India Markets P. Ltd. v. Assistant Commissioner of Income-tax Ltu