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TMI Blog2016 (5) TMI 698X X X X Extracts X X X X X X X X Extracts X X X X ..... orporation v. The Authority for Advance Rulings [2016 (2) TMI 575 - DELHI HIGH COURT ] as held that mere issuance of a notice under Section 143(2)(ii) of the Act which merely stated that the AO would like some further information on certain points in connection with the return that was filed would not result in attracting the bar under clause (i) of the proviso to Section 245R (2) of the Act. It is only if on the date of filing of the application before the AAR the question raised therein was already the subject matter of proceedings before the income tax authorities that the bar in terms of the proviso to Section 245R(2) of the Act would apply. If such application is not already pending on the date of the application, and is the subject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed by the Authority for Advance Ruling (Income Tax), New Delhi ( AAR ) in AAR No. 1513 to 1516 of 2013 filed by the Petitioner. 2. The brief facts are that the Petitioner, a company incorporated under the laws of South Korea, is engaged in the manufacture of electric wires and cables for power distribution. It is stated that the Petitioner has been executing several projects in India involving supply, laying, jointing, testing and commissioning of power cables. It is further stated that the Petitioner executes its onshore works through Project Offices in India established in accordance with the Regulations under the Foreign Exchange Management Act, 1999 ( FEMA ). The contract for offshore supplies is executed directly by its Head Offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Petitioner on the said issue of taxability of offshore supplies, by separate orders, following the decision of this Court for the earlier years. 6. The present petitions concern AYs 2012-13 and 2013-14. For AY 2012-13, the Petitioner filed its return of income on 29th November 2012. On 13th August 2013, the Assessing Officer ( AO‟) issued notice under Section 143 (2) of the Act for initiating assessment proceedings for the said AY. On 20th September 2013, the Assessee filed four applications before the AAR being AAR Nos. 1513 to 1516 of 2013 seeking determination of its tax liability in respect of amounts received towards the offshore supplies contract. This was with specific reference to the contracts with M/s. Power Grid Corpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g question before the Income Tax authorities 10. Notice was issued in these petitions on 14th/15th September 2015 and 6th October 2015. A short reply affidavit has been filed by the Respondents. 11. The question that arises in the present petitions is whether the AAR was justified in rejecting the application on the ground that the question referred to it was pending consideration before the Income Tax authorities, by virtue of notice having been issued on 13th August 2013 under Section 143 (2) of the Act with reference to the return filed for AY 2012-13 thereby attracting the bar under clause (i) of the proviso to Section 245R (2) of the Act. 12. The said question stands answered in favour of the Petitioner and against the Depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent the question raised in the applications by the Petitioner before the AAR do not appear to be forming the subject matter of the said notice under Section 143(2)(ii) of the Act. Consequently, the mere fact that such a notice was issued prior to the filing of the application by the Petitioner before the AAR will not constitute a bar, in terms of clause (i) to the proviso to Section 245-R (2) of the Act, on the AAR entertaining and allowing the application. 14. In Hyosung Corporation v. The Authority for Advance Rulings (supra) this Court also dealt with one of the notices under Section 142(1) which had been issued to the Assessee subsequent to the date of filing of the application before the AAR and had explained that the words alrea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the AAR. 16. As far as the three applications namely AAR Nos. 1513, 1514 and 1516 of 2013 for AY 2013-14 are concerned, the application before the AAR was filed even before the filing of the income tax returns and, therefore, much before the issuance of the notices under Sections 143(2) of the Act on 15th September 2014. Therefore, even in relation to the applications for AY 2013-14, it could not be said that on the date of filing of the said applications the issue raised therein was pending consideration before the income tax authorities. There was no statutory bar to the AAR considering the said application. 17. For the aforementioned reasons, the impugned order dated 3rd August 2015 of the AAR is hereby set aside. The four applica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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