2011 (11) TMI 81

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....ng to allow its application under section 245R(2) of the Income-tax Act and refusing to admit it for a ruling under section 245R(4) of the Act. In the order dated 25.8.2011 this authority had given its reasons to find that the application was hit by the bar contained in clause (i) of the proviso to section 245R(2) of the Act. The applicant submits that the reasoning leading to the invocation of the bar contained in section 245R(2) of the Act is incorrect and requires to be corrected. Even at the threshold, the Revenue has raised the objection that Rule 19 of the Rules is not attracted since that Rule relates only to rectification of mistakes apparent from the record or amending an order vitiated by any such apparent error. What is really s....

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....icer. Obviously, Parliament did not enact words in the statute to the effect that the filing of a return would operate as a bar to the allowing of an application under section 245R(2) of the Act. He also relied on the Hand Book on Advance Rulings published by this authority to support his submission in that behalf. He referred to the passage in the Hand Book that "In a case where a notice under section 142(1) is issued for submission of an income-tax return by the applicant, unless there is any indication in the notice or some other material to show that the issue of this notice was in such circumstances as to show that the questions posed before the Authority has already been agitated by the assessee before, or had already arisen in the mi....

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....turn has been filed. Learned Counsel submitted that the applicant has not shown the income in respect of which the ruling is sought in its return and unless the Assessing Officer conducts roving enquiry, he would not be able to discover the arising of any such income or the question that is now involved in the application before this Authority. This is countered on behalf of the Revenue by pointing out that on an application made in connection with this payment under section 197(2) of the Act, an order was made directing the withholding of tax in terms of section 195 of the Act and there was no need for going in for any roving enquiry. We have some difficulty in appreciating how, without claiming that the particular income is not taxable, ....

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....ould militate against what we have stated in our order rejecting the application. Counsel relied on a ruling of this Authority in Amir Zai Sangin, in Re [238ITR189]. We find therefrom that this Authority had only stated: "To hold that the subsequent act of filing the return would vitiate and render infructuous the application filed earlier under section 245Q(1) would render the entire procedure of seeking an advance ruling otiose. Such an interpretation of the Act would not be correct. What the clause prohibits is the attempt to raise before the Authority questions which, on the date of the application before the Authority, were being agitated in other fora." This authority therein noticed the earlier ruling in Monte Harris [218ITR413]. ....