TMI Blog2008 (9) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... tikeya Dube for the Applicant RULING The applicant, Burmah Castrol Plc. is a non-resident company incorporated under the laws of England and Wales. The applicant submits that during the financial year 2001-02, as per the directive of SEBI, it acquired 12,77,292 equity shares of Foseco India Limited (hereinafter referred to as "FIL"), an Indian company, for an acquisition price of Rs. 221.86 per share and also as per those directives paid a further amount of Rs.49.1429 per share for the delay in making the Open Offer. The payment of the said cost of acquisition of Rs. 271.0029 was made in foreign currency i.e. Sterling Pounds. The shares have been held by the applicant for more than 12 months. The shares of FIL are listed on the Bom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duct tax at source on the sale proceeds of the shares of 10 per cent (exclusive of surcharge and cess). The assessing authority by its order dated 17.1.2008 rejected the applicant's claim and authorized Cookson Plc. to deduct tax at source at 21.15 per cent(inclusive of surcharge and cess) on Rs.198.14 per share (representing the excess of sale price over cost). That order passed by the Asstt. Director of Income-tax 3(2), International Taxation, Mumbai, remained in force till 31.3.2008. The Commissioner points out that the applicant having waited till the expiry of the validity of the order, has filed the present application 3 days later. The Commissioner while pointing out that although technically, the applicant is not hit by the bar unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cisions by two different statutory authorities operating independently and create parallel processes for obtaining favourable decision in their own way." 3. In the next sentence, the Commissioner states that on account of the conflicting orders, "judicial disarray", has emerged. 4. In effect, the Commissioner submits that the filing of this application would amount to abuse of the provisions for seeking advance ruling and by entertaining and deciding this application, the Authority will be "subverting the ordinary process of judicial determination prescribed under the Act" and will be created 'judicial disarray'. 5. We do not find any merit in the strongly worded objection raised by the Commissioner for admitting this applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The order passed under section 197 as a tentative measure does not in anyway fetter the jurisdiction of this Authority to proceed with the application. In fact, the rejection of this application at the admission stage under section 245R(2) would amount to failure to exercise the jurisdiction vested in this Authority. 6. There is nothing illegal or improper in the course chosen by the applicant in approaching this Authority. From the comments of the Commissioner, it is clear that the assessing authority felt itself bound by the Income-Tax Appellant Tribunals decision in preference to the ruling of this Authority and, therefore, passed an order, that too an unreasoned order, under section 197 of the Income-Tax Act rejecting the applican ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... creating "judicial disarray" even when this Authority is seeking to exercise its legitimate jurisdiction without in any way out stepping the contours assigned by law is not in keeping with healthy traditions. We can only express our dismay at the language chosen by the Commissioner. The stand taken by the Commissioner would come to this: Whenever there is a decision of the Tribunal favourable to Revenue, the AAR must stay its hands off and decline to entertain the application unless, for sure, the Authority toes the same line as that set by the Tribunal; otherwise, the Authority will be created a 'judicial disarray' or chaos. Such an attempt to belittle the role of this Authority in the statutory scheme of adjudication cannot be countenanc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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