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TMI Blog2021 (5) TMI 566X X X X Extracts X X X X X X X X Extracts X X X X ..... here could have been no basis to raise this issue in the questionnaire. From the copy of questionnaire sent with notices under section 142(1) of the Act brought on record, we do not find the issue of dividend distribution tax appearing in any of the questions. The claim for the refund of excess dividend distribution tax was made vide applicant's letter dated November 30, 2018 which was after the filing of the present application. The pendency has to be considered on the date of filing of the application and there was no pendency on that date. Merely because the applicant had raised the issue of excess dividend distribution tax in his subsequent letter dated November 30, 2018, it does not create any pendency of the date of application filed earlier. Thus, the questions raised in the present application is not found pending before the Income-tax authority on the date of filing of the application. As held in the case of Hyosung Corporation v. AAR [ 2016 (2) TMI 575 - DELHI HIGH COURT ] that a notice under section 143(2) merely asking for certain information from the assessee issued prior to filing of application before Authority for Advance Rulings will not constitute bar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Mitsui Kinzoku Components India Private Limited under the provisions of section 115-O of the Income-tax Act, 1961 ('Act') on dividend paid/ payable to Mitsui Kinzoku Kogyo Kabushiki Kaisha ('Mitsui Japan') is in substance and effect, a tax on dividends ? Question 2. Whether MKCI, being a resident of India, is entitled to apply the lower tax rate of 10 per cent. under article 10 (dividends) of the India-Japan Double Taxation Avoidance ? Agreement (DTAA/tax treaty) in respect of dividend distribution tax payable on dividend paid/payable to Mitsui Japan by it under section 115-O of the Act. Question 3. Whether the applicant is entitled to the refund of excess dividend distribution tax paid (i. e., excess rate applied by applicant as per section 115-O over the rate of 10 per cent. as per tax treaty) ? 2. The report of the Commissioner of Income-tax was received vide letter dated March 25, 2019 and the only objection of the Department is that the proceeding was pending on the date of filing of present application. Therefore, the application was not admissible under clause (i) of the proviso to section 245R(2) of the Act. It was submitted that the applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that a notice under section 143(2) was issued in this case on July 3, 2017 and thereafter notices under section 142(1) dated July 9, 2018 and September 5, 2018 along with questionnaires were issued which were prior to filing of the present application. He has drawn our attention to the said notice, a copy of which has been filed and contended that the issue raised in the present application was not subject matter of any of the notices. The notice under section 143(2) was a standard notice for complete scrutiny, without any question. Further, in the questionnaires issued along with notice under section 142(1), the questions raised in the present application were not at all involved. He assailed the contention of the Revenue that the questions raised in the present application were subject matter of questionnaires issued by the Department along with notice under section 142(1) of the Act. As regarding filing of the application under section 144A dated December 11, 2018 on the issue of refund of excessive dividend distribution tax, the learned authorised representative clarified that the said application was filed after the filing of present application before the authority. It was su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 142(1) of the Act. We have already reproduced the relevant questions as pointed out by the Revenue. The question No. 21 was in respect of dividend income earned by the applicant and had no relevance to the dividend declared by the applicant. Further, question No. 23 regarding difference in tax credit in form 26AS and return, large outward remittance to non-resident, the gross total income being less than value of foreign remittances and high ratio of refund to TDS are also not found connected with the dividend declared by the applicant and dividend distribution tax made thereon. As already mentioned earlier the applicant had not only deducted and paid dividend distribution tax under section 115-O of the Act on the dividend declared at the prescribed rate but no refund of dividend distribution tax was claimed in the return. Therefore, there could have been no basis to raise this issue in the questionnaire. From the copy of questionnaire sent with notices under section 142(1) of the Act brought on record, we do not find the issue of dividend distribution tax appearing in any of the questions. The claim for the refund of excess dividend distribution tax was made vide applican ..... X X X X Extracts X X X X X X X X Extracts X X X X
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