9911796707
TMI Blog2013 (8) TMI 487X X X X Extracts X X X X X X X X Extracts X X X X ..... the dates of filing of return the date of filing of application before this Authority and the relevant assessment year that before filing of the application the return of income in each case had been filed and the question(s) raised/involved were pending before the Income-tax Authority. The data furnished by the Revenue is not disputed by the applicant. The same reads as follows: AAR No. Project Relevant AY Date of filling return of income Date of filing application before AAR AAR/1150/11 Maharani Bagh 2008-09 Sep.30,2008 Oct.10, 2011 AAR/1143/11 Gurgaon 2009-10 Jan.8,2010 Sep.23,2011 AAR/1144/11 T3 2009-10 Jan.8,2010 Sep.23,2011 AAR/1140/11 T4 2009-10 Jan.8,2010 Sep.23,2011 AAR/1138/11 Bidadi 2010-11 Oct.15, 2010 Sep.23,2011 AAR/1142/11 Maharani Bagh Extension 2010-11 Oct.15, 2010 Sep.23,2011 AAR/1141/11 Sipat 2010-11 Oct.15, 2010 Sep.23,2011 The applicant in each case has raised the following identical questions in the application filed by it:- 1. On the facts and circumstances of the case, whether the amount received/receivable by Hyosung from PGCIL for Offshore supply of equipments and mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turn, an assessee invites an adjudication on all the questions arising out of that return. Subsection (2) of section 245R only speaks of the question arising before the Authority. So if an answer to that question would be involved in the return filed or would arise out of the return filed, it would be a case where the bar is attracted. The arising of a question from out of a return filed, cannot depend on the volition, diligence, care or lack of care on the part of the Assessing Officer. A jurisdiction cannot depend on such vagaries. When an income is received or is expended as a permissible expenditure, both figure in the return and are dealt with while completing the assessment. If the return is accepted after scrutiny or without scrutiny, it would only mean that the claim of the applicant has been accepted by the Assessing Officer. The implication is that the question is answered in his favour. This would not mean that, the question or aspect has not arisen before the Assessing Officer, on the filing of the return. We have dealt with some of the relevant aspects in our orders in SEPCO III." The Hon'ble Delhi High Court in W.P.(C) 3959 of 2012 concurred with the view. Therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y a non-resident applicant; or (ii) a determination by the Authority in relation to [the tax liability of a non-resident arising out of] a transaction which has been undertaken or is proposed to be undertaken by a resident applicant with such non-resident, and such determination shall include the determination of any question of law or of fact specified in the application; (iii) a determination or decision by the Authority in respect of an issue relating to computation of total income which is pending before any income-tax authority or the Appellate Tribunal and such determination or decision shall include the determination or decision of any question law or of fact relating to such computation of total income specified in the application; [Provided that where an advance ruling has been pronounced, before the date on which the Finance Bill, 2003 receives the assent of the President, by the Authority in respect of an application by a resident applicant referred to in sub- clause (ii) of this clause as it stood immediately before such date, such ruling shall be binding on the persons specified in section 245S;] [(b) "applicant" means any person who - (i) is a non-resident referr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application for ruling after having filed a return. On filing of such return, assessment proceedings get initiated. Return may be either accepted or may be taken up for scrutiny. Acceptance brings finality, while scrutiny would make the ascertainment of liability pending. It is in this view, it was ruled in Wavefield Inseis ASA, In re (2012)343 ITR 136 (AAR) that where a return is filed, there could be no jurisdiction for advance ruling following its earlier ruling in SEPCO III Electric Power Construction Corporation, In re (No.1)'s case (supra), The jurisdictional bar on entertaining an application on advance ruling is relatable to the aspect whether the question which can be either a question of law or a question of fact is pending before any income-tax Authority or Appellate Tribunal except in the case of resident applicant falling in sub-clause (iii) of clause (b) of section 245N or any Court. What is of seminal importance is the crucial issue as to whether the question raised is pending before the Income-tax Authority, the Appellate Tribunal or a Court. Even when a return is filed but the question is not pending adjudication, there is no jurisdictional bar in admitting the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lause (i), if he considers it necessary or expedient to ensure that the assessee has not understated the income or has not computed excessive loss or has not under-paid the tax in any manner, serve on the assessee a notice requiring him, on a date to be specified therein, either to attend his office or to produce, or cause to be produced, any evidence on which the assessee may rely in support of the return: [Provided that no notice under clause (ii) shall be served on the assessee after the expiry of six months from the end of the financial year in which the return is furnished.] day of June, 2003;] When notice u/s.143(2) is issued, all the informations available in the return and claims thereon are subject to adjudication by the Assessing Officer and several issues emerge for adjudication by the Assessing Officer. Some of them relate to computation of total income, computation of exemptions and exclusions, acceptance or non-acceptance of any item of expenditure. Ultimately the assessment is made in determining the gross total income, the net/chargeable income and determination of tax liability. They are all intrinsically linked and cannot be separated. With issue of notice u/s.14 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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