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JUDGMENT M.S. Sanklecha, J. - This petition under Article 226 of the Constitution of India challenges the order dated 30 January 2013 passed by the Transfer Pricing Officer (TPO) under Section 92CA(3) of the Income Tax Act, 1961 ("the Act") and the Draft Assessment Order dated 28 March 2012 passed by the Assessing Officer. The assessment year involved is A.Y. 2009-10. 2. Mr. Pardiwala, learned Senior Counsel appearing for the petitioner states that after having filed this petition on issue of jurisdiction as a matter of abundant caution objections to the Draft Assessment Order were filed before the Dispute Resolution Panel (DRP) on various issues including issue of jurisdiction raised in the present proceeding. Mr. Pardiwala, learned Senior Counsel on instructions undertakes that objections filed with the DRP in respect of the issues raised herein would be withdrawn by them. Undertaking accepted. Therefore, the challenge to the jurisdictional issue viz. the jurisdiction of the 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 the Act is being challenged only before this Court. It is only after accepting the undertaking given by the petitioner that the merits of the issues raised in this petition are being considered. 3. Mr. Percy Pardiwala, learned Senior Counsel appearing for the petitioner at the very outset submitted that the issue raised in this petition viz. the jurisdiction of the revenue to tax under Chapter X of the Act capital account transactions not giving rise to income is no longer res integra in view of the decision of this Court in Vodafone India Services (P.) Ltd. v. Union of India [2004] 368 ITR 1/50 taxmann.com 300 . (Vodafone-IV). 4. Mr. Dave, learned Counsel appearing for the respondent revenue, while accepting the fact that the issue raised in this petition is in principle covered by the decision in Vodafone IV, yet submits that there are certain distinguishing features in this case which would warrant this Court not extending the benefits of the decision in Vodafone-IV to the present petitioner. 5. Before considering the rival submissions,…

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