2012 (8) TMI 744

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....tice by the applicant or the Commissioner, but only after allowing the applicant and the Commissioner reasonable opportunity of being heard." 2. According to the Revenue, overruling the contention of the applicant in AAR 854 of 2009, this Authority has held that the taxable unit in respect of the transaction relied on by the applicant is an Association of Persons within the meaning of section 2(31)(v) of the Income-tax Act. Having so held, this Authority has gone on to rule that the transaction put forward by the applicant related to offshore supply of equipments and is not taxable in the country, proceeding as if the applicant alone is the assessee under the Act, and ignoring the effect of the finding earlier rendered that the recipient....

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....nable since there is no mistake apparent from the record capable of being corrected under the rule. It is also submitted that subsequent to the ruling rendered by this Authority, the Officer dealing with withholding tax, has given effect to the Order by modifying the withholding tax Order. Hence the condition that the correction can be made only before the Assessing Officer has given effect to the ruling of this Authority, is not satisfied. 6. The objection that the ruling has been given effect to by the Assessing Officer cannot be fully accepted. It has been given effect to in the proceeding which was only a withholding order authorizing the company to deduct tax in terms of the ruling given. This Authority has repeatedly noticed that a....

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....seen that there is a clear omission to consider the impact of the finding that the consortium which has been entrusted with the contract and of which one of the members was an Indian resident, had the status of an AOP under the Act. Once the status of an AOP has been assigned to the consortium, then the consortium can be assessed only as an AOP and not its members individually. Therefore, the logical conclusion to the ruling should have been that the transaction of offshore supplies which was part of the contract undertaken by the consortium, had to be considered on the basis that it was an activity carried on by the consortium. I am therefore satisfied that the ruling of this Authority to the effect that the offshore supplies is not liable....