Decision starts at page 138.Please read following para – i think, it is very important
126 As it was a precondition of the SPA that HTIL would get the call centre business of the assessee transferred to its group company, a MOU was entered into for settling the terms and conditions of the BTA. At the time of MOU dated 30.04.2007, the payment of purchase consideration of Rs. 64 crores was made. It is pertinent to note that HWP (India) was not
having funds of its own nor any business ever done till the date of the BTA. The payment of Rs. 64 Crores was also made by HWL Group Company though routed through the bank account of HWP (India). The statement of account is placed at page no. 232 of the paper book. We have also carefully perused the bank statement of HWP (India) and find that the payment of Rs. 64 crore was received by HWP (India) in its bank account on 30.04.2007 when the MOU was signed between the assessee and HWP (India). The payment was also made on the same date i.e. 30.04.2007. Thus it is clear that the payment was made by HWL Group Company and not by
the HWP (India), though it was routed through the bank account of HWP (India). There is no record produced by the assessee to show that the HWP (India) procured finance from its Group Companies for the purpose of business. Further only after the beginning of process of divestment of investment in India by HTIL and decision of retaining the call centre business, the Memorandum Of Association (MOA) of HWP (India) was amended in January 2007, to incorporate the call centre business in its object.
There was no business, commercial or economic substance or interest of HWP (India) involved in the transaction of purchase of call centre business except it was in pursuant to the SPA and to avoid chargeability of tax under the provisions of transfer pricing of Income Tax Act. The transaction in substance is between the assessee and HTIL/ HWL Group, the AEs of the assessee and HWP (India) is merely an interpose to give a different colour to the transaction with the motive to circumvent the transfer pricing provisions of the Act. The surrounding facts and circumstances can lead to the conclusion that it was only an arrangement without any substantial business or commercial interest of HWP (India) but to avoid the tax liability in India, the call centre business was though apparently transferred to HWP (India) but the real transaction of sale and purchase is between the assessee and HTIL/HWL Group. Therefore, the transaction being between the assessee and its non resident AEs would constitute the international transaction in terms of section 92B(1).