9911796707
TMI Blog2016 (6) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner seeks a direction to the respondent Income tax Officer to forthwith give appeal effect and consequential net refund after adjustment of any outstanding demands along with interest. 3. The facts stated briefly are that the petitioner which is assessed in the status of a firm, filed its return of income on 28.10.2005 for assessment year 2005-06 on a total income of Rs. 3,27,280/-, on which, according to the petitioner, there was a refund due of Rs. 1,80,174/-. The assessment came to be finalised by an order dated 17.12.2007 passed under section 143(3) read with section 147 of the Income Tax Act, 1961 (hereinafter referred to as "the Act") on a total income of Rs. 35,85,700/-. The petitioner carried the matter in appeal before the Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the matter of giving effect to the appellate orders, to submit that the respondent herein is duty bound to give effect to the order passed by the Commissioner (Appeals). Reference was also made to the Citizen's Charter, 2014 (Annexure-K to the petition) to point out that the respondent was required to give effect to the appellate order within a period of one month from the date of such order. It was pointed out that against the order dated 5.9.2013 passed by the Commissioner (Appeals), the department has preferred an appeal before the Tribunal; however, no stay has been granted by the Tribunal and hence, the respondent is duty bound to comply with the order passed by the Commissioner (Appeals) and give effect to it. It was, accordingly, u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fact that in the case of the petitioner, a demand of Rs. 5,79,824/- is to arise and a demand of Rs. 2,03,007/- is outstanding for assessment year 2006-07, it cannot be said that the petitioner is entitled to refund of the amount as claimed in the petition. It is also the case of the respondent that the order dated 5.9.2013 has not attained finality in the eye of law as the department's appeal against the said order is pending before the Tribunal and that in view of the fact that the appeal against the order dated 19.11.2008 had been withdrawn by the assessee, such order has become final for all purposes and is in operation. It is in the light of the above stand adopted by him that the respondent has not given effect to the order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... draw the appeal and, accordingly, by an order dated 10.1.2014 the Tribunal dismissed the appeal as withdrawn. It appears that against the order dated 5.9.2013 passed by the Commissioner (Appeals), the department has preferred an appeal before the Tribunal which is still pending adjudication. 7. In the light of the order dated 5.9.2013 passed by the Commissioner (Appeals), the petitioner requested the respondent to give effect to the said order. However, the respondent has, in the light of the stand referred to hereinabove, not given effect to the said order nor has he responded to the communications addressed to him by the petitioner for giving effect to the said order. 8. Section 154(4) of the Act provides that a rectification has to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for all purposes and shall be in operation, clearly disregarding the order dated 5.9.2013 passed by the Commissioner (Appeals) on the rectification application filed by the petitioner under section 154 of the Act. Besides, a clearly contradictory stand has been taken by the respondent in the affidavit-in-reply, wherein, on the one hand it is stated that the order dated 19.11.2008 has attained finality and is in operation, whereas on the other hand, it is stated that since the rectification order dated 5.9.2013 is subject-matter of challenge before the Tribunal, it cannot be given effect to at this stage. Essentially the stand of the respondent is that one way or the other, the order dated 5.9.2013 passed by the Commissioner (Appeals) is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a case where there is a statutory duty imposed upon the officer concerned and there is failure on the part of the officer to discharge the statutory obligation. No court can permit any statutory authority to frustrate the statutory requirements of any provision. The respondent being statutorily bound to comply with the provisions of sub-section (5) of section 154 of the Act, in the opinion of this court, cannot refuse to give effect to the order passed by the Commissioner (Appeals). The stand adopted by the respondent in the affidavit-in-reply and as urged before this court is thoroughly misconceived and contrary to the provisions of law. Under the circumstances, the petition deserves to be allowed by issuing the directions as prayed for th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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