TMI Blog2010 (2) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... merits. The learned Sr. Counsel for the applicant has fairly stated that the discretion of this Authority cannot be denied. - The applicant cannot seek adjudication on merits at any time he wants after having allowed the previous application to go by default. Further, it is not as if the applicant will be left without remedy to agitate the same issue before the Income-tax authorities or the Tribunal. The extreme argument that proceedings shall be deemed to be pending notwithstanding the disposal of earlier application cannot be accepted. In any case, it is not at all a fit case to exercise our discretion to admit this second application and decide it on merits. – Authority rejected. - 842 of 2009 - - - Dated:- 2-2-2010 - P.V Reddi and J. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of the same transaction/contract and a similar question. The application was disposed of by this Authority on 17th June, 2009 with the observations made therein. This Authority could not decide the question raised in that application for the reason that the applicant, in spite of being given adequate opportunities, failed to respond and present the relevant facts, documents and clarifications. This Authority declined to answer the question as the factual details were lacking. However, the legal position in regard to the offshore supply of goods was noted by the Authority at paragraph 3. Then, it was observed: "3.1. Though that is the legal position, the question can only be dealt with in the light of the actual facts in the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e dollars thus remains unsubstantiated. We are at a loss to know as to what exactly happened in this case. No clarification has been given, no sequence of events have been set out and no documents relevant to the off shore supplies of goods have been furnished in spite of putting the applicant on notice. We have before us only the Sub-contract Agreement in a truncated form. As per App. 2-A 1.2, the sub-contractor assumes all the main contract responsibilities and liabilities for the Sub-contract works. The 'main contract' has not been filed to understand what are those responsibilities. Some other relevant documents such as performance bond and the conditions of Sub-contract, "being the "core clauses of the NEC Engineering and Construction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e through the contents of the application and the annexed documents. We find that the documents furnished are not in complete shape e.g. Appendix-3 8 which may have bearing on the case have not been furnished. Secondly, the chain of documents relating to off-shore supplies from the date of shipment upto the date of clearance from the port are not made available. Copies of the 'High-seas purchase contract', commercial invoice, bill of lading etc. referred to in the application have also not been filed. Presumably, the applicant by now would have imported the equipment from abroad in connection with the contract. Hence, the applicant should file all the documents taking two concrete instances of import of equipment/material so that we may h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned to the Commissioner. (2) The authority may, after examining the application and the records called for, by order, either allow or reject the application: [Provided that the Authority shall not allow the application where the question raised in the application, (i) is already pending before any income-tax authority or Appellate Tribunal [except in the case of 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 resident applicant falling in sub-clause(iii) of clause (b) of section 245N].:] Provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 245R, it is submitted that the present application may be treated as continuation of the previous application/proceedings and this Authority may exercise its discretion and proceed to rehear the application on merits on the basis of the additional facts/material now adduced and to give a ruling on merits. In other words, it is contended that in the absence of the question not having been decided either way, the proceedings must be deemed to be pending and this Authority is not powerless to look into the additional material now furnished and give a decision on merits in terms of section 245R(4) of the Income-tax Act, 1961. 7. Undoubtedly, this Authority has discretion either to admit this repetitive application and hear the same on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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