TMI Blog2005 (3) TMI 790X X X X Extracts X X X X X X X X Extracts X X X X ..... kground which is common to both the applications. M/s. Rotem Company (the applicant in AAR/612/ 2003 - for short the first applicant), M/s. Mitsubhishi Corporation (the applicant in AAR/613/2003 - for short the second applicant) and M/s. Mitsubhishi Electric Corporation, Japan constituted a consortium under the leadership of the second applicant. The consortium submitted tender for design, manufacture, supply, testing and commissioning of passenger rolling stock for the Delhi Metro Rail Corporation (DMRC). On the acceptance of the tender, the consortium entered into contract with DMRC on 22nd May, 2001 (hereinafter referred to as RS 1 ). Under the RS1 a fixed lump sum comprising of INR 3.110.439.836 and US$ 260,997,269 was payable by DMRC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30th May, 2003 - the date of filing of the applications before the Authority. In respect of financial year 2003-04, the application under section 197 of the Act, filed on 25th March, 2003 was also pending before DDIT on 30th May, 2003. The Commissioner raised three points in regard to the maintainability of the applications : (1) returns filed for the aforementioned three years were pending before the Income-tax Officer in which substantially the same questions were pending; (2) writ petition filed by M/s. Mitsubhishi Corporation was pending before the High Court; and (3) proceeding under section 197 was pending before the DDIT in respect of financial year 2003-04. 3. Mr. Akhilesh Ranjan, Director of Income-tax (International t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a resident applicant falling in sub-clause (iii) of clause (b) of section 245N] or any court; (ii)involves determination of fair market value of any property; (iii)relates to a transaction or issue which is designed prima facie for the avoidance of income-tax [except in the case of a resi- dent applicant falling in sub-clause (iii) of clause (b) of section 245N]. Provided further that no application shall be rejected under this sub-section unless an opportunity has been given to the applicant of being heard : Provided also that where the application is rejected, reasons for such rejection shall be given in the order. A perusal of sub-section (2) quoted above, shows that it confers discretion on the Authority to allow or reje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , namely, pendency of the same questions in the writ petition before the High Court and the DDIT, it must be noted that those proceedings related only to determination of rate of tax for TDS. It was in that context three of the questions could be said to be under consideration. But the same questions were not directly and substantially pending before the High Court or income tax authorities. There is no dispute that before the Authority the question for determination of the rate of tax for TDS is not involved. The earlier order of 22nd November, 2004 passed by the Authority was recalled on the sole ground of incorrect verification of the applications by the applicants. After the amendment of the applications, that defect has been cured as t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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