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TMI Blog2012 (4) TMI 491X X X X Extracts X X X X X X X X Extracts X X X X ..... his would mean CESTAT is free to render a ruling ignoring what is being ruled by this Authority. Such a situation should be avoided. Also, once the existence of the conditions specified by any one of the clauses barring the jurisdiction of the Authority is established, the Authority was bound to reject the application. No necessity is felt for adjudication on first contention. We, thus, reject these applications in exercise of our discretion – Decided against the appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... ther contended that the bar under the proviso to Section 96D(2) of the Act would be attracted only when a proceeding is pending in the applicant's case and admittedly, there is no case that any proceeding was pending against the applicants. 4. Section 96A(b) defines an applicant, inter alia, to mean, a resident falling within any such class or category of persons as the Central Government may by notification in the Official Gazette specify in that behalf. Vide notification no. 27/2009-ST, a public sector company has been notified. The said notification reads : "In exercise of the powers conferred by sub-clause (iii) of clause (b) to Section 96A of the Finance Act, 1994 (32 of 1994), the Central Government hereby specifies any public secto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct and there is no warrant for including the subsidiary of a subsidiary within that definition. 6. Then coming to the other objection regarding the pendency of an appeal before the CESTAT at the instance of the holding company of the applicants raising the same question, it is contended that the applicants are entirely different from the holding company and since in their case, no proceedings were pending, the bar contained in clause (a) of the proviso to section 96D(2) of the Act would not be attracted. In other words, the applicants seek to establish an identity independent of the holding company for this purpose, whereas they seek to attach themselves to the strings of the holding company for the purpose of claiming the competence to ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he application. It was not open to the Authority to ignore the legal bar. The Authority then proceeded to hold: "However, it does not follow that the application is bound to be admitted and heard on merits once the factors set out in the proviso do not come in the way of admission. Still the Authority has the discretion to reject the application, of course, on germane and weighty considerations. That discretion has to be exercised judiciously keeping in view the spirit and purpose of the provisions concerning advance ruling. The discretion may be invoked in exceptional cases but power to reject on grounds not expressly spelt out by the Statute cannot be ruled out. In other words, the proviso to section 245R(2) does not have the effect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing rendered by two different Authorities on an identical transaction. In the facts and circumstances of this case, we think that such a situation should be avoided. This will be in furtherance of the spirit of enacting the bar to the jurisdiction of this Authority to entertain an application for advance ruling, when the identical question is pending before an authority under the Act, the Tribunal or Court. 9. We are in respectful agreement with the view taken by the Authority for Advance Rulings (Income-tax) in the above quoted ruling and applying the principle accepted therein, hold that we should exercise our discretion not to allow this application under section 96D(2) of the Act for the purpose of giving a ruling under section 96D(4) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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