TMI Blog2021 (2) TMI 1163X X X X Extracts X X X X X X X X Extracts X X X X ..... t is not found transparent in this case as the fact regarding prior issue of notice under section 143(2) for A.Y. 2018-19 was not mentioned in the application filed before the Authority. As the said notice was received prior to filing of the application the Applicant should have disclosed this fact in the application and the left the issue of 'pendency' for our adjudication. No notice under section 143(2) for the A. Y. 2019-20 - It is found that in the questions raised before us no assessment year is mentioned. Further, the eligibility of deduction under section 80IA has to be decided in the first year of claim. Once the claim is found eligible in the first year of claim the taxpayer is entitled for deduction in all the subsequent years and vice versa. Further, as per the provisions of the Act, it is not necessary that the issues raised in the application should be pending in all the years involved. Even if the issue is pending in a single year, it makes the application ineligible for admission under clause (i) of proviso to section 245R(2) of the Act. Issue involved in the questions raised in the present application filed before us was already pending before the In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... For the A.Y. 2019-20 no proceeding had taken place. In the course of hearing on 5th January, 2021, the Ld. DR had informed that the case for A.Y. 2018-19 was already selected for scrutiny and further time was sought to find out the exact reasons for which the case was taken up for scrutiny. The Ld. AR had confirmed that the notice under section 143(2) dated 22.09.2019 for A.Y. 2018-19 was received by the Applicant, which was prior to the filing of the present application. However, there was no reference of this notice in the application. The Ld. AR had explained that the notice was general in nature and the issues raised in the application were not involved therein. We had required the Applicant to file a copy of the said notice under section 143(2) for A.Y. 2018-19 along with questionnaire, if any, received from the Department, which was complied. The Ld. DR has submitted that the issue in respect of which the present application was filed, was one of the reasons for issue of notice u/s 143(2) of the Act and, therefore, the proceeding was already pending before the Income-tax Authority prior to filing of the present application. Accordingly, the application was not liable to be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be admitted for the reason that the issue raised in the application was already pending before the Income-tax Authority. On the other hand, the Applicant has contended that the question regarding eligibility of deduction under section 80IA was not pending before the Income-tax Authority. It is found from the notice under section 143(2) dated 22.09.2019 for A. Y. 2018-19 that the case was selected for scrutiny under Computer Aided Scrutiny Selection ('CASS'). The content of the said notice is found to be as under: Dear Taxpayer, Thank you for filing your return of income for Assessment Year 2018-19 vide Ack. no. 459236551310319 on 31.03.2019. 2. While acknowledging the care and diligence you may have taken in preparing the return, there are certain issues which need further clarification, for which your return of Income has been selected for scrutiny and such issues initially are as under: S. No. Issues i Double Taxation Relief u/s 90/91 ii Claim of Any Other Amount Allowable as Deduction in Schedule BP iii. Reducti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation) Vs. Authority for Advance Ruling(supra). It is found that the notice under section 143(2) issued in that case was for the reason 'taxable income shown is revised return is less than the taxable income shown in the original return and large refund has been claimed'. However, the question pending in the application before the Authority was in respect of royalty for use of IPR relating to design, development, marketing, distribution, etc. On these facts it was held by the Hon'ble Court that the question raised in the application was not pending before the Income-tax Authority as the return was selected for scrutiny for altogether different reason. As the facts of that case are totally different from the present one, the ratio of that decision is not found applicable. 8. The Applicant has also relied upon the decision of the Delhi High Court in the case of Hyosung Corporation (supra). The Court had held in that case that a notice under section 143(2) merely asking for certain information from assessee issued prior to filing of application before AAR will not constitute bar in terms of clause (i) to proviso to section 245R(2), on AAR entertaining and allowing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e A.O. to issue a scrutiny notice on account of the international transactions reported by the assessee. 10. The facts of both Hyosung Corporation and Sage Publications are thus found to be different. In both the cases, neither any specific question was raised nor was the issue on which the case selected for scrutiny, mentioned in the notice u/s 143(2) of the Act. In the present case, however, the specific issues on which the case was selected for scrutiny was mentioned in the notice under section 143(2). Thus, the facts of the present case are different and distinct from the facts of the cases relied upon by the Applicant. At the same time the Hon ble Court had also held in the case of Hyosung Corporation that where notice under section 142(1) was issued raising the questions that were the subject matter of the application before the AAR, clause (i) of the proviso to section 245R(2) was attracted. To quote from the order: 29 . Therefore, in as much as, the notices under Section 142 (1) of the Act raising the very questions that form subject matter of the applications by the Petitioner before the AAR for AYs 2008-09 and 2009-10 were issued prior to the filing of the applica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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