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2020 (8) TMI 770 - HC - Income TaxJurisdiction of AAR to decide an issue because of non-existence of “Jurisdictional Fact” u/s 245R(2) - Issue was already pending - scrutiny proceedings - question on which notice under Section 143(2) of the Act was issued was “taxable income shown in revised return is less than the taxable income shown in the original return and large refund has been claimed - whether the royalty is taxable in the hands of the petitioners at the time of actual receipt or otherwise? HELD THAT:- Two Division Benches of this Court in Hyosung Corporation vs. Authority for Advance Rulings & Ors. [2016 (2) TMI 575 - DELHI HIGH COURT] and Sage Publication Ltd. Vs. Deputy Commissioner of Income-Tax (International Taxation) [ 2016 (9) TMI 299 - DELHI HIGH COURT] have held that a question cannot be said to be pending under Clause (i) of proviso to Section 245R(2) upon issuance of a mere notice under Section 143(2) of the Act, especially when it has been issued in a standard pre-printed format and the questions raised before the authority for advance ruling do not appear to be forming the subject matter of the said notice. This is also more so when the notice fails to satisfy the particulars of claim of loss, exemption, deduction, allowance or relief as mandated by Section 143(2)(i) The AAR has followed the above-noted decisions and held notice under section 143(2) merely asks the applicant to produce any evidence on which it may like to rely in support of its return. It does not even remotely disclose any application of mind to the return filed by the applicant. For this reason, AAR has held that that question cannot be said to be pending to attract the bar under clause (i) of the proviso to Section 245R(2) of the Act. - the issues of law and fact raised by the learned counsel for petitioners are no longer res integra. We do not any infirmity in the approach adopted by the AAR. Judgement in the case of Sudhir Chandra Nawn [1968 (4) TMI 1 - SUPREME COURT] is clearly inapplicable to the facts of the present case as it only states that even if the formula for calculation of tax liability under two different statutes enacted under different entries in List III of Schedule VII of the Constitution is similar, that would not make the fields of legislation under the two entries overlapping. Decided against the revenue.
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