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TMI Blog2014 (10) TMI 746X X X X Extracts X X X X X X X X Extracts X X X X ..... rit of the provisions of Section 245 inasmuch as no opportunity of hearing was given to the assessee before the adjustment was made - Therefore, on this ground alone the adjustment order is to be quashed – Decided in favour of assessee. - W. P. (C) 6172/2014 & CM 14938/2014 - - - Dated:- 16-10-2014 - Badar Durrez Ahmed And Siddharth Mridul,JJ. For the Petitioner : Mr M.S.Syali, Sr. Advocate with Mr Tarandeep Singh and Mr Mayank Nagi For the Respondents : Ms Suruchi Aggarwal. JUDGMENT Badar Durrez Ahmed, J (Oral) 1. In this writ petition the following prayers have been made:- a) A Writ of Certiorari or Writ, order or direction in the nature of Certiorari, or any other appropriate Writ, order of direction under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Division Bench of this court held as under:- 25. In our view, the power under section 245 of the Act, is a discretionary power given to each of the tax officers in the higher echelons to set off the amount to be refunded or any part of that amount against the same, if any, remaining payable under this Act by the person to whom the refund is due. That this power is discretionary and not mandatory is indicated by the word may‟. Secondly, the set off is in lieu of payment of refund. Thirdly, before invoking the power, the officer is expected to give an intimation in writing to the assessee to whom the refund is due informing him of the action proposed to be taken under this section. 26. xxxx xxxx xxxx xxxx 27. As already no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the aforesaid direction. Thus, enough safeguards have been provided not only in the I.T. Act, 1961 but also in the Instructions issued by the CBDT (emphasis supplied) 21. The aforesaid statement reflects the correct position in law as Section 245 mandates and envisages prior intimation to the assessee so that he/she can respond before any adjustment of refund is made towards the demand relating to any other assessment year. Thus, an opportunity of response/reply should be given and after considering the stand and plea of the assessee, justified and valid order or direction for adjustment of refund can be made. The Section postulates two stage action; prior intimation and then subsequent action when warranted and necessary for adjustme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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