Colourable Device and Gains Taxable In USA Parent’s Hands , Sale of shares of foreign company taxable if object is to acquire the Indian assets

Aditya Birla Nuvo Limited vs. DDIT (Bombay High Court) TIL cannot be said to be unaware of the fact that the shares of ICL held by AT&T Mauritius did not belong to AT&T Mauritius because TIL was party to the Shareholders Agreement, wherein all rights in respect of the shares of JVC to be issued after the Shareholders Agreement was to vest in AT&T USA and not with AT&T Mauritius. In the Share Purchase Agreement, it is recorded that the sale of shares of AT&T Mauritius in favour of TIL would take place only after the sale of shares of ICL in favour of Indian Rayon takes place so that on the date of transfer of shares of AT&T Mauritius, only 50% of the ICL shares remain in the name of AT&T Mauritius. Therefore, the primafacie opinion of the Revenue that the transaction between TIL and NCWS / MMMH for sale and purchase of shares of AT&T Mauritius was a colourable transaction and in fact the transaction was for sale and purchase of ICL shares by NCWS to TIL cannot be said to be devoid of any merit.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO.730 OF 2009 AND WRIT PETITION NO.345 OF 2010

Aditya Birla Nuvo Limited Versus The Deputy Director of Income­ tax and Union of India