IN HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION rt WRIT PETITION NO.2479 OF 2014 Shell India Markets Pvt. Ltd. ....Petitioner. vs. C Union of India and ors. ...Respondents. Mr. Persy Pardiwala, Senior Counsel i/by M.P.Savla & Co. for Petitioner. Mr. Tejveer Singh for Respondents. CORAM : M. S. SANKLECHA AND S.C. GUPTE, JJ. DATE : 18 NOVEMBER, 2014 : At instance of Counsel, petition is being y disposed of at stage of admission. ba 2) Challenge in this petition is to jurisdiction of om Revenue to bring to tax under Chapter X of Income Tax Act 1961 ( Act ) shortfall of amounts receivable on issue of equity shares to Associated Enterprise (A.E.) when benchmarked against B Arms Length Price (ALP) at which equity shares ought to have been issued. This alleged difference on capital account is characterized as income. ::: Uploaded on - 27/11/2014 ::: Downloaded on - 03/05/2016 19:10:33 ::: ASN 2/4 WP-2479 3) This petition challenges order dated 29 January 2014 of Transfer Pricing Officer(TPO) as well as Draft Assessment order rt dated 30 May 2014 passed by Assessing Officer for A.Y. 2010-11. ou petitioners has filed objections to Draft Assessment Order with Dispute Resolution Panel (DRP). Mr. Pardiwala, Counsel for petitioner, on instructions, undertakes to withdraw its objections filed C before DRP with regard to issues in this petition. Undertaking accepted. We proceed to hear petition on basis of above h undertaking. 4) ig It is agreed between Counsel that so far as this Court H is concerned issue is no longer res integra as it has been resolved by this Court in Vodafone Services Private Limited vs. Union of India 368 ITR Page 1 (Vodafone IV) in favour of petitioner. y ba 5) It is agreed between Counsel that facts and parties to challenge in this petition for A.Y.2010-11 are identical to om challenge made in W.P. No.1205/2013 in respect of A.Y. 2009-10. We have by order disposed of today W.P.No.1205/2013 in favour of petitioner. It is agreed position between parties that for identical B reasons mentioned in order passed in W.P.No.1205 of 2013, this petition could also be disposed of in favour of petitioner. ::: Uploaded on - 27/11/2014 ::: Downloaded on - 03/05/2016 19:10:33 ::: ASN 3/4 WP-2479 6) We find that issues raised in this petition are completely covered by our order passed today in Writ Petition rt No.1205/2013. One additional feature of present petition is that ou deemed interest which is sought to be brought to tax in A.Y.2009-10 is also sought to be brought to tax in A.Y. 2010-11 as being payable for this Assessment Year, besides seeking to bring to tax deemed C interest in respect of short fall in premium on shares issued in A.Y. 2010-11. h 7) However, it is clarified that petitioner's objection before ig DRP filed on 25 April 2013 on all other issues save issue raised H in this petition would be considered by DRP on its own merits. 8) Accordingly, we set aside order dated 29 January 2004 of Transfer Pricing Officer (TPO) and Draft Assessment ba Order dated 30 May 2004 to extent it seeks to tax short fall of amounts received on issue of shares to AE for A.Y.2010-11 along om with interest on amounts short received and interest relating to amounts short received on issue of shares to AE for earlier A.Y. 2009-10 for reasons given in our order passed today in B accompanying Writ Petition NO.1205/2013 filed by petitioner for earlier Assessment Year 2009-10. other issues, which are subject matter of objections before DRP, will be decided by ::: Uploaded on - 27/11/2014 4/4 WP-2479 DRP on its own merits. 9) Petition is disposed of in above terms. No order as to costs. (S.C. GUPTE, J.) (M.S. SANKLECHA, J.) Shell India Markets Pvt. Ltd. v. Union of India and Or