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TMI Blog2014 (5) TMI 858X X X X Extracts X X X X X X X X Extracts X X X X ..... TCI Overseas Corporation Limited, Hongkong) and CINDA Engineering and Construction Private Limited, India in terms of the consortium agreement dated 06.03.2009. 2. Insofar as the alternative prayer questioning the jurisdiction of the Authority for Advance Rulings to adjudicate on the existence of an AOP is concerned, the learned counsel for the petitioner has not pressed the same before us. 3. On the question of AOP, the Authority for Advance Rulings has concluded as under:- "11. The Revenue has argued that the case of the applicant is covered under the provisions of the Act as the Government of India has not entered into a Tax Treaty under section 90(2) of the Act with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the above discussion that the Association of Persons is one in which two or more persons join together for a common purpose or common action and there is a joint management or joint action by the said two or more persons. In order to treat persons as an association, it is necessary that the members must have a common intention and must act jointly for fulfilling the object of their joint enterprise. 34. However, it is also necessary to bear in mind that the purpose of treating two or more persons as an association of persons is to impose tax on the income that may be attributed to their joint enterprise. It is, thus, obvious that it would be necessary to consider the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation as to what facts, how many of them and of what nature are necessary to come to a conclusion that there is an association of persons within the meaning of Section 3". 35. It is obvious that unless the facts lead to a conclusion that there is sufficient joint participation for a common enterprise, it would not be appropriate to treat two or more persons as an Association of Persons for the purposes of assessing them as a separate taxable entity. A mere cooperation of one person with another in serving one's business objective would not be sufficient to constitute an Association of Persons merely because the business interests are common. A common enterprise, which is managed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he above legal principles. It is ordered accordingly.
7. We make it clear that the only issue urged before us was the question with regard to the existence of an AOP as a taxable entity. No other issue was agitated before us either by the petitioner or by the respondent. Consequently, this writ petition is disposed of with the direction that the finding of the Authority for Advance Rulings in the impugned ruling dated 01.02.2012 concerning the AOP issue is set aside and the matter is remitted to the said authority for the limited purpose of determining, on facts, as to whether the petitioner and CINDA constituted an AOP in terms of the legal principles set down in Linde (supra).
There shall be no order as to costs. X X X X Extracts X X X X X X X X Extracts X X X X
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