TMI Blog2011 (8) TMI 213X X X X Extracts X X X X X X X X Extracts X X X X ..... ore us is not pending before the Assessing Officer when the return of income is filed. - Application for advance ruling rejected being the issue is pending before AO. - A.A.R. NO. 1009 OF 2010 - - - Dated:- 25-8-2011 - JUSTICE P.K. BALASUBRAMANYAN, V.K. SHRIDHAR, JJ. Present for the applicant Mr. N Venkatraman, Senior Advocate, Mr. Satish Aggarwal, FCA, Mr. Atul Awasthi, ACA Present for the Department Mr. Sanjay Kumar, DIT(IT), Kolkatta, Ms. Dipi Agrawal, ADIT(IT), Bhuvneshwar ORDER 1. This application filed by the applicant SEPCOIII Electric Power Construction Corporation under section 245Q(1) of Income-tax Act has come up for hearing under section 245R(2) of the Act in the light of the objection filed by the Revenue to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amounts received/receivable by SEPCOIII Electric Power Construction Corporation, China from Sterlite Energy Private Ltd. (SEPL) upon execution of Offshore Supply Contract No. SEPL/SEPCO-III/JSG-01 dated 10-5-2006 are liable to tax in India under the provisions of Income-tax Act, 1961 and the Agreement for Avoidance of Double Taxation between India and China?" 6. The Revenue raised the objection to the entertaining of the application on the ground that proceedings under section 197 of the Act were already pending and the question sought to be raised was the subject matter of the revision under section 263 of the Act when the application was filed. Regular assessment proceedings had been commenced against the applicant concerning the ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion was made. 8. As far as this authority is concerned, the position has been adopted that the mere pendency of a proceeding under section 195 or 197 of the Act or even a final order thereon does not stand in the way of an application for advance ruling being entertained. We do not feel it necessary to consider the question over again notwithstanding the arguments in that behalf on behalf of the Revenue. We go by the stand we have earlier adopted on this question and over-rule the objection of the Revenue that the order under section 197 or the pendency of the revision therefrom under section 263 of the Act on the day of the filing of this application would bar the jurisdiction of this authority to entertain the application and to give a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder of assessment to be passed under section 143(3)(ii) of the Act. The Assessing Officer has still to deal with all the claims of the person furnishing the return arising out of the return. 12. In that context, can it be said, where a Return of income is furnished and the proceedings for assessment are giving on, that a claim by the person that the income returned by him or one of the items of income returned by him is not taxable in this country has not arisen for consideration by the Assessing Officer or that it is not pending before him? On principle, it appears that it cannot be said so. The question raised in the application before the authority under section 245Q of the Act is whether the amounts received by the applicant are liab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Another possible view is that it is only a restriction on the jurisdiction of this Authority enabling it to refuse to pronounce a ruling at its discretion when one of the conditions of the proviso to section 245R(2) is satisfied. The latter view, if adopted, might render the bar created by the proviso to section 245R(2) of the Act if not otios at least inconsistent and dependent on a discretion that may vary with the Chancellor s foot. 15. It may be proper to understand the proviso to section 245R(2) of the Act as creating a bar to the jurisdiction of this Authority once it is found that any one of the prescriptions therein is satisfied. The power of this Authority to exercise a discretion in deciding not to give a ruling even when one ..... X X X X Extracts X X X X X X X X Extracts X X X X
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