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2019 (7) TMI 233 - HC - Income TaxDividend distribution Tax (DDT) - buy back its own shares u/s 77A of the Companies Act - distribution of accumulated profit or not - impact of pendency of application filed under 245Q before Authority for Advance Rulings - scope of amendment in Section 115QA w.e.f. 01.06.2016 - assessee contended that it has bought back its own shares under the Scheme of Arrangement and Compromise u/ss 391 to 393 of the Companies Act prior to the amendment. Section 115O of the Act mandates issuance of SCN, enquiry before passing a final order - HELD THAT:- From a plain reading of the provisions from 115O to 115QA, it is seen that Section 115 O is a charging section on its own. These Sections are self contained codes in themselves and they do not demand for issuing any show-cause notice and then passing any order. - It is to be noted that unless the law requires, the AO need not issue notice before making a demand u/s 115 O. The parliament in its wisdom brought amendments to the Finance Act and inserted Section 115 O to 115 Q with effect from 01.06.1997 (Special Provisions) to achieve an object. If any other view is taken, then the Special Provisions under Chapter XIV would become redundant and it would be opening a pandoras box. Breach of principles of natural justice - HELD THAT:- Admittedly, a notice dated 21.11.2017 was issued to the petitioner calling for details and meetings were convened, in which, indisputably, the officials of the petitioner Company participated and a detailed note explaining the various provisions of the Act have been given to them. It is pertinent to note that the object and purpose of issuing show cause notice is to put on notice to the proposed action to be initiated by the Officials and nothing else. But, a curious stand is taken by the petitioner that the letter dated 21.11.2017 cannot be construed as a showcause notice and the informal discussion cannot be substituted for a proper show-cause notice with a chance of reply and an opportunity of hearing, hence, I find no substance in the said submission. AO is prohibited from issuing the impugned order in the light of the bar prescribed in Section 245 RR - petitioner approached the Authority for Advance Rulings only on 20.03.2018 - notice issued on 21.11.2017 - HELD THAT:- Section 245R makes it clear that if the enquiry is already pending before the AO, the Authority for Advance Rulings has no jurisdiction to entertain the application. Hence, I find no force in the argument of the learned Senior Counsel for the petitioner that the impugned order does not stand in view of the bar u/s 245 RR. Writ Petition is maintainable - HELD THAT:- It is well settled that the assessee has an appeal remedy u/s 246. In this case, an unsuccessful attempt has been made by the petitioner to bypass the appeal remedy, but, I find no valid ground to entertain the Writ Petition. In that view, the Writ Petition is dismissed as not maintainable at this stage. The Writ Petition fails and the same is dismissed. However, liberty is given to the petitioner to prefer an appeal within a period of four weeks from today. If such an appeal is filed within the stipulated time, the Appellate Authority shall dispose of the same on merits.
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