132. Ernst and Young`s report of 11.2.2007 indicates, among other things, that when they were asked by LE HIV to perform due diligence, they were in contact with Array and its subsidiaries. The above report demonstrates that the parties had in mind, during the negotiation phase, the transfer of a business upstream and not the direct transfer of HEL. The transfer of Tableau had the advantage of transferring control of all the participation of Mauritian companies downstream (Tier I companies) with the exception of GSPL. On the other hand, the advantage of the transfer of the HIV CGP share has enabled the indirect acquisition of the rights and obligations of GSPL (Indian company) in the Centrino and NDC framework agreements. This is why HIV chose the CGP route. 171. Section 195 requires the payer to deduct the source tax (abbreviated CAS) from payments made to non-residents whose payments are taxable. These payments must include taxable income in India. If the amount paid or credited by the payer is not taxable, there is no obligation to deduct.

Holdings in companies outside India (CGP) are real estate located outside India. If such shares are transferred at sea between two non-residents, there is no liability for capital gains tax. In such a case, there would be no question of withdrawal from CAS. 385.M. Aspi Chinoy, senior counsel, has, at our request, detailed the scope and purpose of Section 9 of the Income Tax Act. He submitted that the first four clauses/parts of Section 9 (1) (i) deal with the obligation to tax revenues from income, income from ownership or ownership of an asset in India, and the transfer of an asset located in India. Mr. Chinoy submitted that only the last part of Section 9, paragraph 1, point (i), was part of the transfer of an asset located in India and could be taxed as capital assets. The qualified Senior Counsel submitted that the asset should be located in India for the application of Section 9(1) I) and that the meaning of this section could not be carried by a process of interpretation or construction to indirect transfers of assets/real estate located in India.

Senior Counsel has learned that there are cases where assets/shares located in India are not transferred, but in which shares of foreign shares holding such shares are transferred. 289. Ramsay was followed by the House of Lords in another decision in IRC v. Burmah Oil Co. Ltd. 1982 54 TC 200 HL In that case, it was also a series of transactions that were themselves cancelled. In that case, Lord Diplock upheld the judicial opinion that the evolution of the case law was unfounded and stated that the Ramsay case represented a significant change in the Approach of the House of Lords from a series of previously determined transactions. The cases of Ramsay and Burmah were, as can be seen, against the self-cancellation of artificial tax systems, which were widespread in England in the 1970s. Instead of making self-recounting transactions too fallonious, some Law Lords speeches naturally gave the impression that the tax efficiency of a system should be assessed on the basis of its commercial substance and not its legal form. On this issue, of course, there was some conflict with the principle set out at Duke of Westminster.

Duke of Westminster looked at the “only stage of tax evasion.” In the 1970s, English courts faced several planned circumvention measures, including a number of measures. In fact, earlier in IRC v Plummer 1980 AC 896, Lord Wilberforce commented on a scheme stating that the same thing was done with “almost military precision” that forced the court to consider the scheme as a whole.