9911796707
TMI Blog1999 (7) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... pending before the Income-tax Appellate Tribunal. For the assessment year 1996-97, by virtue of a rectification order passed under section 154 on August 31, 1998, a sum of Rs. 22,87,134 was re fundable. For the assessment year 1997-98 a refund of Rs. 10,78,700 was found payable in accordance with the intimation under section 143(1)(a) of the Act. According to learned counsel for the petitioner, adjustment of refund for the year 1997-98 and part of the amount refundable of 1996-97 have wrongly been adjusted in the demand outstanding for 1995-96. In the intimation for the assessment year 1997-98 dated March 31, 1998, adjustment of refund of Rs. 10,78,700 for the demand of 1995-96 is stated to be without intimation to the petitioner and w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue to the assessee, intimation in writing is to be given for an action proposed to be taken under section 245. Any order of set off purporting to be made without any such intimation is neither fair not just nor reasonable and has to be ignored. The matter if examined in the light of the above decisions and the provisions of section 245 of the Act, it is clear that the adjustment/set off could be made after giving the intimation to such person of whom the action is proposed to be taken. The word "after" in the section refers that first intimation has to be given and then adjustment/set off may be made. In spite of opportunity being given, it has not been proved that any intimation was given in respect of adjustment of Rs, 3,96,505 out of r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Department. The provisions of prior intimation are only to safeguard the interest of the assessee to the extent if the amount is not payable then set off should not be made. It may be because some amount has already been paid or some relief has been given, in appeal, rectification, revision, etc., or for some reason, the demand shown to be outstanding may not be the correct figure. It is not in dispute that the amount of demand to that extent was outstanding. In these circumstances, in respect of Rs. 3,96,505 since nothing has come on record regarding giving any prior intimation nor adjustment or any order communicated to the assessee, it is considered that the declaration to that extent alone was pending. The Commissioner of Income-tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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