Application to the Authority for Advance Rulings (‘AAR’) in sections 245N to 245V

 

1.

Meaning of advance ruling

2.

Meaning of Applicant

3.

Applicant vis-a-vis the application

4.

Certain circumstances in which the application cannot be allowed

5.

Form of application

6.

Fees for filing the application

7.

Documents to be submitted along with the application

8.

Person entitled to sign the application

9.

Can the application be withdrawn?

10.

Procedure on receipt of application for advance ruling

11.

Restriction on further procedure

12.

Applicability of advance ruling

13.

Advance ruling to be void in certain circumstances.

14.

Powers of the AAR

 

A resident taxpayer may have some taxation issues in respect of a transaction which has been undertaken or proposed to be undertaken with a non-resident. Similarly, a non-resident may have some taxation issues in respect of transaction which has been

undertaken or proposed to be undertaken by him in India. In order to get clarification on taxation of those transactions, a person can make an application to the Authority for Advance Rulings (‘AAR’). Provisions relating to advance ruling are provided in sections 245N to 245V.

 

In this part, you can gain knowledge about various provisions relating to advance ruling.

 

1.      Meaning of advance ruling

Section 245N(a) gives the definition of ‘advance ruling’. As per section 245N(a) “Advance Ruling” means :

 

       A determination by the AAR in relation to a transaction which has been undertaken or is proposed to be undertaken by a non-resident applicant.

 

       A determination by the AAR in relation to the tax liability of a non-resident arising out of a transaction which has been undertaken or is proposed to be undertaken by a resident applicant with such non-resident.

 

       A determination by the AAR in relation to the tax liability of a resident applicant, arising out of one or more transaction valuing Rs.100 crore or more [vide Notification No. 73/2014, dated 28-11-2014] in total which has been undertaken or is proposed to be undertaken by such applicant and such determination shall include the determination of any question of law or of fact specified in the application.

 

       A determination or decision by the AAR in respect of an issue relating to computation of total income which is pending before any income-tax authority or the Appellate Tribunal. It shall include the determination or decision of any question of law or of fact relating to such computation of total income specified in the application.

 

       A determination or decision by the AAR\ whether an arrangement, which is proposed to be undertaken by any person being a resident or a non-resident, is an impermissible avoidance arrangement as referred to in Chapter X-A. [Chapter XA contains provisions relating to General Anti-Avoidance Rule (GAAR)].

 

2.      Meaning of Applicant

The application for advance ruling can be made by an applicant as defined in section

245N(b). As per section 245N an ‘applicant’ would mean the following:

 

       A non-resident who has undertaken or proposes to undertake a transaction in India.

 

       A resident who has undertaken or proposes to undertake a transaction with a non resident.

 

       A resident who has undertaken or propose to undertake one or more transactions of value of Rs.100 crore or more in total[vide Notification No. 73, dated 28-11-2014]

 

       A resident falling within notified class or category of persons (presently includes public sector companies).

 

       Any person (resident or non-resident) making an application for determining whether an arrangement, is an impermissible avoidance agreement as referred to in Chapter X-A (applicable from 1-4-2015).

 

3.      Applicant vis-a-vis the application

After understanding the meaning of “Advance Ruling” and “Applicant”, it is important to understand the nature of application which can be made by an applicant. Following Chart highlights the nature of application which can be made by various applicants:

 

Nature of applicant

Nature of application

A non-resident applicant

A determination by the AAR in relation to a transaction which has been undertaken or is proposed to be undertaken by a non-resident applicant. Such determination shall include the determination of any question of law or of fact specified in the application.

A resident applicant who has undertaken

a transaction with non-resident or

proposes to undertake a transaction with

non-resident.

A determination by the AAR in relation to the tax liability of a non-resident arising out of a transaction which has been undertaken or is proposed to be undertaken by a resident applicant with such non-resident. Such determination shall include the determination of any question of law or of fact specified in

the application.

A resident who has undertaken or

propose to undertake one or more

transactions of value of Rs.100 crore or

more in total; or

A determination by the AAR in relation to the tax liability of a resident applicant arising out of such transactions and such determination shall include the determination of any question of law or of fact specified in the application.

A resident falling within notified class or category of persons (i.e., a public sector

company).

A determination or decision by the Authority in respect of an issue relating to computation of total income which is pending before any income-tax authority or the Appellate Tribunal and such determination or decision shall include the determination or decision of any question of law or of fact relating to such computation of total income specified in the application.

Any person (resident or non-resident)

making an application for determination

of whether an arrangement is an

impermissible avoidance agreement as

referred to in Chapter X-A. (applicable

from 1-4-2015)

A determination or decision by the Authority whether an arrangement, which is proposed to be undertaken by any person being a resident or a non-resident, is an impermissible avoidance arrangement as referred to in Chapter X-A. (applicable from. 1-4-2015)

 

4.      Certain circumstances in which the application cannot be allowed

In following circumstances the application is not allowed by the AAR:

 

       when the question raised is already pending before any income-tax authority or appellate tribunal or any Court. However, exception will apply in the case of a resident applicant falling within the notified class or category of persons i.e. a public sector company.

 

       when the question involves determination of fair market value of any property.

 

       when the question relates to a transaction which is designed prima facie for the avoidance of income-tax. Exception to this provision: (i) resident taxpayer falling within notified class or category of persons i.e. a public sector company and (ii) Any person (i.e., resident or non-resident) making an application to determine whether an arrangement proposed to be undertaken is an impermissible avoidance arrangement under Chapter X-A.

 

5.      Form of application

The application of advance ruling is to be made in the form prescribed in this regard.

Different forms are prescribed for different applicants. Following Chart highlights the

form of application applicable to different applicants.

 

Applicant

Form of application

A non-resident applicant

Form No. 34C (application should be in

quadruplicate)

A resident seeking advance ruling in

relation to a transaction undertaken or

proposed to be undertaken by him with a

non-resident.

Form No. 34D (application should be in

quadruplicate)

A resident seeking advance ruling in

relation to his tax liability arising out of

one or more transactions valuing Rs.100

crore or more in total which has been

undertaken or proposed to be ndertaken

by him

Form No. 34DA (application should be in

quadruplicate)

A resident falling within any such class

or category of person as is notified by

Central Government (i.e., a public sector

company)

Form No. 34E (application should be in

quadruplicate)

Any person (resident or non-resident)

making an application for determination

of whether an arrangement, is an

impermissible avoidance agreement as

referred to in Chapter X-A. (applicable

from 1-4-2015)

Form No. 34EA (application should be in

quadruplicate)

 

6.      Fees for filing the application

 

The fees payable along with application for advance ruling shall be in accordance with the following table:

 

Category of applicant

Category of case

Fee

A non-resident applicant.

A resident seeking

advance ruling in relation

to the tax liability of a

non-resident arising out

of transaction undertaken

or proposed to be

undertaken by him with a

non-resident.

A resident seeking

advance ruling in relation to his tax liability arising

out of one or more

transactions valuing

Rs.100 crore or more in

total which has been

undertaken or is

proposed to be

undertaken by him

Amount of one or more

transaction, entered into or proposed to be undertaken, in respect of which ruling is sought does not exceed Rs. 100 crore.

Rs.2,00,000

Amount of one or more

transaction, entered into or proposed to be undertaken, in respect of which ruling is sought exceeds Rs. 100 core but does not exceed Rs. 300 crore.

Rs.5,00,000

Amount of one or more

transaction, entered into or proposed to be undertaken, in respect of which ruling is sought exceeds Rs. 300 crore

Rs.10,00,000

Any other applicant

In all cases

Rs.10,000

 

7.      Documents to be submitted along with the application

       4 copies of application in the prescribed form.

 

       Account-payee demand draft for the prescribed fees in favour of 'Authority for Advance Ruling's payable at New Delhi.

 

8.      Person entitled to sign the application

The application shall be signed by –

 

a)        In the case of an individual

i)         By the individual himself;

 

ii)        Where, for any unavoidable reason, it is not possible for the individual to sign the application, the application can be signed by any person duly authorised by the individual in this behalf. However, in such a case, the person signing the application shall hold a valid power of attorney from the individual to do so, which shall be attached to the application.

 

b)        In the case of a Hindu Undivided Family–

i)         By the karta thereof, and

 

ii)        Where, for any unavoidable reason, it is not possible for the Karta to sign the application, by any other adult member of such family.

 

c)         In the case of a company –

i)         by the Managing Director thereof, or where for any unavoidable reason such  Managing Director is not able to sign and verify the application, or where there is no Managing Director, by any Director thereof;

 

ii)        Where, for any unavoidable reason, it is not possible for the Managing  Director or the Director to sign the application, by any person duly authorised by the company in this behalf. However, in such a case, the person signing the application shall hold a valid power of attorney from the company to do so, which shall be attached to the application.

 

d)        In the case of a firm –

i)         by the managing partner of the firm.

 

ii)        Where for any unavoidable reason such managing partner is not able to sign and verify the application or where there is no managing partner as such, by any partner of the firm other than a minor.

 

e)        In case of an association of persons,

the application should be signed by any member of the association or the principal officer thereof.

 

f)         In case of any other person,

the application should be signed by that person or by some person competent to act on his behalf.

 

Add Every application in the form as applicable shall be accompanied by the proof of

payment of fees as specified in above table.

 

9.      Can the application be withdrawn?

Application once made by the applicant can be withdrawn within a period of 30 days from the date of application.

 

10.    Procedure on receipt of application for advance ruling

On receipt of an application, the AAR Shall send a copy thereof to the Principal Commissioner or Commissioner and, if necessary, will call upon him to furnish the relevant records. Where any records have been called for by the Authority in any case, such records shall, as soon as possible, be returned to the Principal Commissioner or Commissioner.

 

The Authority may, after examining the application and the records called for from the Commissioner, either allow or reject the application. The AAR shall not allow the application in certain circumstances (already discussed earlier). However, no application shall be rejected unless an opportunity has been given to the applicant of being heard. Where the application is rejected, reasons for such rejection shall be given in the order. A copy of every such order shall be sent, both to the applicant and to the Principal Commissioner or Commissioner.

 

Where an application is allowed, the AAR shall, after examining such further material as may be placed before it by the applicant or obtained by the AAR, pronounce its advance ruling on the question specified in the application.

 

On a request received from the applicant, the AAR shall, before pronouncing its advance ruling, provide an opportunity to the applicant of being heard, either in person or through a duly authorized representative (The term "Authorised representative" shall have the meaning assigned to it in section 288(2). )

 

The AAR shall pronounce its advance ruling in writing within six months of the receipt of application.

 

A copy of the advance ruling pronounced by the AAR, duly signed by the Members and certified in the prescribed manner shall be sent to the applicant and to the Principal Commissioner or Commissioner, as soon as possible, after such pronouncement.

 

11.    Restriction on further procedure

No income-tax authority or the Appellate Tribunal shall proceed to decide any issue in respect to which an application has been made to the AAR by an applicant, being a resident.

 

12.    Applicability of advance ruling

The advance ruling pronounced by the AARshall be binding only on the applicant who had sought it and that too in respect of the transaction in relation to which the ruling had been sought. Further, it shall be binding on the Principal Commissioner or Commissioner and the Income-tax authorities subordinate to him, in respect of the applicant and the said transaction.

 

The advance ruling pronouncement as stated above shall be binding as aforesaid, unless there is a change, in law, or facts on the basis of which the advance ruling was

pronounced.

 

13.    Advance ruling to be void in certain circumstances.

Where the AAR finds, on a representation made to it by the Principal Commissioner or Commissioner or otherwise, that an advance ruling pronounced by it has been obtained by the applicant by fraud or misrepresentation of facts, then the Authority may, by an order, declare such ruling to be void ab initio and thereupon all the provisions of the Act shall apply to the applicant as if such advance ruling had never been made.

 

A copy of the order made as above shall be sent to the applicant and to the Principal

Commissioner or Commissioner.

 

14.    Powers of the AAR

The AAR shall, for the purpose of exercising its powers, have all the powers of a civil court under the Code of Civil Procedure, 1908 as are referred to in section 131 of this Act. Powers vested under section 131 are discovery and inspection, enforcing the attendance of any person, including any officer of a banking company and examining him on oath, compelling the production of books of account and other documents, and issuing commissions. It will also have the power to regulate its own proceeding in all the matters arising out of the exercise of its powers under the Income-tax Act.

 

The AAR shall be deemed to be a civil court for the purposes of section 195 but not for the purposes of Chapter XXVI of the Code of Criminal Procedure, 1973 and every proceeding before the Authority shall be deemed to be a judicial proceeding under certain provisions of the Indian Penal Code.

 
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