9911796707
TMI Blog1999 (8) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner filed appeal against the assessment order dated May 7, 1993, which was disposed of by order dated November 16, 1995, by the Commissioner (Appeals). Meanwhile the Assessment was reopened under section 147 of the Act by issuing a notice under section 148 of the Act. The assessment was reframed under section 143(3) read with section 147 of the Act and the net taxable income was determined by an assessment order dated February 16, 1996, at Rs.73,28,428. The Commissioner of Income-tax (Appeals), Ludhiana, allowed the appeal filed by the assessee against the order dated February 16, 1996, by his order dated September 3, 1996, and annulled the assessment as framed by the Assessing Officer. The Commissioner of Income-tax filed all appeal before the Income-tax Appellate Tribunal in November, 1996, against the order of the Commissioner of Income-tax (Appeals), Ludhiana, and the same is pending adjudication. The operation of the order dated September, 3, 1996, has not been stayed by the Income-tax Appellate Tribunal. In the above situation, the petitioner made a request to respondent No.2 to give effect to the order dated September 3, 1996, and to grant refund as an amount of Rs.60 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The case of the respondents is that the appeal against the order of assessment dated September 3, 1996, is pending before the Income-tax Appellate Tribunal, Chandigarh, and, therefore, it has not attained finality. The Assessing Officer sent a proposal to the Commissioner of Income-tax by giving his opinion that the issue of refund to the assessee will adversely affect the interest of the Revenue. The Commissioner of Income-tax approved the withholding of the said refund vide letter dated November 21, 1996, copy annexure R-2. The Commissioner of Income-tax is not required to pass an order, but is only required to approve or disapprove the proposal of the Assessing Officer. Since the Commissioner of Income-tax is not required to pass any order withholding the refund, the question of supplying a copy of the order to the assessee did not arise. The amount has been withheld after getting the approval from the Commissioner of Income-tax and the said approval has been granted after due application of mind to the proposal sent by the Assessing Officer. In para. 19 of the written statement it is sought to be highlighted that some amounts were due from the petitioner for some other ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s v. CIT [1988] 169 ITR 320, it was held by a Division Bench of this court that the assessing authority is not justified in withholding the refund in exercise of its powers under section 241 of the Income-tax Act, which became due to the assessee merely for the reason that the reference proceedings initiated by the Revenue questioning the validity of the order under which the refund had become due are pending before the appropriate authority. In Hansa Agencies Private Ltd. v. CIT [1988] 169 ITR 322 (P H), it was again held that the assessing authority is not justified in withholding the refund in exercise of its powers under section 241 of the Income-tax Act, which became due to the assessee as a result of annulment of the assessment merely on the ground that the proceedings questioning the validity of the annulment order are pending. In Pioneer Sports Works v. CIT [1997] 227 ITR 89, a Division Bench of this court while considering the provisions of section 241 of the Income-tax Act again came to a conclusion that power to withhold the refund cannot be exercised merely on the ground that some proceedings under the Act are pending. The Assessing Officer is to form an opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the assessee was entitled to a refund of a huge amount, which has been ordered to be withheld under the impugned orders. The assessee has tried to show that it had filed the income-tax returns in time and has paid an advance tax of Rs.60,00,000 even for the subsequent years and that it is not in arrears of tax or penalty relating to any assessment year whatsoever and thus the Department was not at all justified in with holding the refund only by stating that the interest of the Revenue would suffer in the event of the refund being ordered. Mr. Sawhney, learned counsel appearing for the Revenue, on the other hand, placed reliance on Leader Valves Pvt. Ltd. v. CIT [1987] 167 ITR 542 (P H), which decision in no way helps the Revenue or supports the view taken by the Revenue. In this case again it was held that section 241 of the Act does not contemplate that the grant of refund during the pendency of the proceedings under the Act is an act, which necessarily affects the Revenue adversely. Whether the grant of refund during the pendency of the proceedings will adversely affect the interest of the Revenue depends upon the facts and circumstances of each case. This decision thus i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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