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TMI Blog2013 (6) TMI 194X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to follow the procedure laid down under Section 245 of the Income Tax Act by providing an opportunity to the petitioner and to pass an order in accordance with law. - Decided in favor of assessee. - Writ Petition Nos.2508-2509/2013 - - - Dated:- 13-2-2013 - H N Nagamohan Das, J. For the Appellant: Sri P Dinesh, Adv. For the Respondent: Sri Thirumalesh, Adv. JUDGEMENT:- 1.In these writ petitions the petitioner has prayed for a writ in the nature of certiorari to quash the order dated 22.11.2012 and 19.10.2012 vide Annexures-A and A1 passed by respondent no.1. 2. Petitioner company is an export oriented unit. For the assessment year 2007-2008 petitioner company filed returns of income claiming deduction under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2012 the stay application came to be rejected and directed to pay the demand in installments. Aggrieved by this order at Annexure-A rejecting the stay application the petitioner is before this court. 4. Heard arguments on both the side and perused the entire writ papers. 5. Learned counsel for the petitioner contends that the order of first respondent at Annexure-A1 adjusting refund of Rs.14,24,54,020/- towards the demand for assessment year 2008-2009 is illegal, arbitrary and contrary to Section 245 of the Act. There is some force in this contention of learned counsel for the petitioner. In identical circumstances a Division Bench of this court in Fosroc Chemicals (India) Ltd vs. Commissioner of Income tax and another 248 ITR 607 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the present case there was no prior intimation of the proposed action of adjusting the amount of refund due to the assessee towards any other amount due from the assessee. It was an intimation informing the appellant that the amount of refund due for the assessment year 1997-98 stood adjusted against the outstanding demand for the assessment year 1995-96. It would not be same thing as a prior intimation of the proposed action. As the adjustment of the refund amount was made without following the provisions of section 245 and without giving a proper intimation the same was bad in law. The provisions of section 245 being mandatory in nature, any action taken contrary to such provision would be bad in law. This is the consistent view of oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter is required to be remanded to the first respondent to follow the procedure laid down under Section 245 of the Income Tax Act by providing an opportunity to the petitioner and to pass an order in accordance with law. 7. Being aggrieved by the order of assessment for the assessment year 2008-2009 petitioner company filed an appeal before the Commissioner of Income Tax (Appeals) and the same is pending adjudication. In the meanwhile, the petitioner filed a letter on 14.2.2012 before the assessing officer for stay of his order of assessment for the year 2008-2009. After having discussions with the authorized representative of the petitioner company, the assessing officer permitted the petitioner company to pay the demand as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same is pending adjudication. Therefore, the finding of Commissioner of Income Tax (Appeals) has not attained finality. Secondly, the first respondent rejected this contention on the ground that the issues involved in the assessment year 2007-2008 are partly similar to the issues involved in the year 2008-2009. This reasoning given by the first respondent in the impugned order is in accordance with law and I find no justifiable ground to interfere with the same. 9. After passing the assessment order for the year 2008-2009 petitioner made an application for stay on 14.2.2012. The first respondent after having discussion with the authorized representative of the petitioner company permitted them to pay the demand on monthly installmen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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