Plz provide the answer of this ques.
Is it necessary the case should be pending in Assesse's case or any other case
3 Replies
Rohit
(ICAI)
(259 Points)
Replied 05 April 2013
But answer is different
The matter relates to the admission or rejection of the application filed before the Advance
Ruling Authority on the grounds specified in clause (i) of the first proviso to sub-section (2) of
section 245R of the Income-tax Act, 1961.
Clause (i) of the first proviso of section 245R(2) provides that the Authority shall not allow the
application where the question raised in the application is already pending before any incometax
authority or Appellate Tribunal or any court.
In the above case, no application had been filed or contention urged by the applicant (foreign
company) before any income-tax authority/Appellate Tribunal/court, raising the question raised
in the application filed with AAR. One of the Indian companies, however, had raised the
question before the Assessing Officer, not on the applicant’s behalf or with a view to benefit
the applicant, but only to safeguard its own interest, as it had a statutory duty to deduct the
proper amount of tax from payments made to a non-resident. Although the question raised
pertains to one of the payments made or to be made to the non-resident applicant, it was not
one pending determination before any income-tax authority in the applicant’s case.
Therefore, as held by the AAR in Ericsson Telephone Corporation India AB v. CIT (1997) 224
ITR 203, the application filed by the Indian company before the Assessing Officer cannot be
treated to have been filed by the non-resident. Hence, it would not be proper to reject the
application of the foreign company relying on clause (i) of the proviso to sub-section (2) of
section 245R of the Income-tax Act, 1961. The application is, therefore, maintainable.
Saurabh Maheshwari
(B.com,ACA)
(5923 Points)
Replied 05 April 2013
Rohit.....agreed...good explantion
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