2015 (11) TMI 546 - HC - Income Tax

Grant of refund with interest - department seek to adjust the refund with subsequent demand - Held that - Petitioner is entitled to a direction to the respondent to forthwith refund to it the entire amount of refund without any adjustment being made against such amount, inasmuch as, the respondent cannot be permitted to take advantage of his own wrong in not refunding the amount due and payable to the petitioner at the appropriate time in terms of the provisions of the Act, and then seek to set off the refund against a demand subsequently raised, otherwise it would amount to putting a premium over the wrong act of the respondent of not refunding the amount when due and adjusting the same against the demands which have accrued much later in point of time. For the foregoing reasons, the petition succeeds and is, accordingly, allowed. The respondent is directed to forthwith, within a period of fifteen days from the date of receipt of this order, refund the entire amount of ₹ 17,08,78,351/- to the petitioner together with interest under section 244A of the Act in accordance with law, without making any adjustment in relation to any demand which arises after the date of this order. - Decided in favour of assessee.

Summary

Issues:
1. Refusal to grant refund despite orders of C.I.T. (Appeals) and multiple reminders.
2. Allegations of Assessing Officer's actions to raise a demand and defeat the payment of refund.
3. Interpretation of Section 240 of the Income Tax Act regarding refund on appeal.
4. Respondent's argument of likely demands arising from proceedings under sections 271(1)(c) and 143(3) read with section 115JB.
5. Legal authority for the respondent to retain the refund amount against potential future demands.
6. Petitioner's entitlement to immediate refund without adjustment against future demands.

Analysis:

1. The petitioner sought relief through a writ petition under Article 226 of the Constitution of India, questioning the delay in granting a refund of Rs. 17,08,78,351/- following orders of C.I.T. (Appeals) for assessment years 2007-08 to 2012-13, despite numerous reminders.

2. The petitioner alleged that the Assessing Officer's failure to refund the amount was intentional, supported by subsequent notices under sections 154 and 271(1)(c) of the Income Tax Act, aimed at thwarting the refund process.

3. The petitioner's counsel highlighted Section 240 of the Act, emphasizing the Assessing Officer's obligation to refund amounts due to the assessee without requiring a claim, citing a previous court decision mandating refunds within a specified period.

4. The respondent argued that potential demands from pending proceedings justified withholding the refund, claiming likely demands of Rs. 12,56,90,319/- for assessment years 2010-11, 2011-12, and 2013-14.

5. The court scrutinized the legal basis for the respondent's retention of the refund against future demands, finding no provision allowing such actions under the Act, questioning the legitimacy of the respondent's stance.

6. Ultimately, the court ruled in favor of the petitioner, directing the immediate refund of the full amount without adjustments against future demands, denouncing the respondent's unauthorized withholding of the refund and emphasizing the need to adhere to statutory refund provisions without prejudice.

This comprehensive analysis outlines the legal intricacies and arguments presented in the judgment, culminating in a clear directive for the immediate refund to the petitioner.