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TMI Blog2014 (1) TMI 607X X X X Extracts X X X X X X X X Extracts X X X X ..... otice under section 143(2) was issued on 20.9.2010 which was before filing the application - The assessment was also completed under section 143(3) of the Act by the Assessing Officer on 1.2.2012 – It is clear that the question was already pending before the Income-tax Authorities and the application is barred by Proviso (1) of section 245R(2) of the Act – Decided against assessee. - A.A.R. No.1077 of 2011 - - - Dated:- 10-1-2014 - Dr. Arijit Pasayat and Mr. TBC Rozara, JJ. For the Appellant : Mr. Girish Dave, Advocate, Mr. K.R.Vasudevan, Advocate, Mr. Arup Borua, CO.Rep., Mr. K.Subramanian, Ms. Ramya Nayak For the Respondent : Mr. RS Rawal, CIT-DR(AAR), ND, Kr. Aravind, Sr. Standing Counsel ORDER The applicant J P Coats L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ased on the facts and in the circumstances of the case, the cost recouped by the Applicant from MCPL for the connectivity provided by BT UK would in the nature of reimbursement of expenses and hence not subject to tax in India? 2) In the event, the answer to Question 1 is in the negative, would be cost recouped by the Applicant from MCPL be regarded as- a) royalties within the meaning of the said express in Article 13 of the India-UK Double Taxation Avoidance Agreement ( Indo-UK DTAA ) or within the meaning of the said term in Explanation 2 to section 9(1)(vi) of the Income tax Act, 1961 ( the Act )?; or b) fees for technical services within the meaning of the said expression in Article 13 of the Indo-UK DTAA or within th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that notices under section 143(2) and 142(1) were issued before the applicant filed an application to the Authority for Advance Rulings. It was therefore, argued that the question is already pending before the Income tax Authority and the application is barred by Proviso (i) to section 245R(2) of the Income-tax Act, 1961 (hereinafter referred to as the Act). 5. The applicant on the other hand submitted that mere filing of return does not attract the bar unless the question raised in the application for Advance Ruling is an issue pending for adjudication before the Income Tax Authorities. Reliance is placed on the decision of this Authority in the case of Hyosung Corporation Korea in AAR/1138/2011. The learned AR also submitted that par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent to ensure that the assessee has not under-stated the income or has not computed excessive loss or has not under-paid the tax in any manner, he can serve notice under section 143(2). Before or without issuing notice under section 143(2) or notice under section 142(1) in cases whether return is not filed, there is no jurisdiction to examine or adjudicate debatable issue claimed or shown in the return of income. 8. The decision in the cases of SEPCO III Electric Power Construction Corporation (supra) and NetApp BV (supra) are based on the premise that by filing a return, an assessee invites adjudication of the question arising out of the returns. It will be seen from analysis of provisions under section 143(2) and 142(1) of the Act, that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is issued, the question raised in the application will be considered as pending for adjudication before the Income-tax Authorities. In the present case not only return of income was filed but even notices under section 143(2) and 142(1) were already issued before filing of the application. Return of income for the relavant assessment year was filed on 30.9.2008 and a revised return was filed on 31.3.2010 i.e. before filing the application to the Authority for Advance Rulings on 19.5.2011. Notice under section 143(2) was issued on 20.9.2010 which was before filing the application. The assessment was also completed under section 143(3) of the Act by the Assessing Officer on 1.2.2012. The submission of the learned AR that the particulars of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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