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TMI Blog2021 (4) TMI 922X X X X Extracts X X X X X X X X Extracts X X X X ..... l annexed to the reply refers to status of outstanding demands and intimation under section 143 (1) and not to under section 245 - It also emerges that there is no record made available by the respondents about any separate intimation being issued to the petitioner under section 245 of the Act for adjustment of demands from the refund from AY 2019-20 as referred to under note in intimation pursuant to section 143 (1) of the Act. The affidavit in reply is silent over the same. It is not the case of the respondents that revenue officer had passed an order, inter alia, with regard to contention that there is no receipt of intimation under section 245 of the Act at the end of the petitioner and reasons were recorded as to why those are not sustainable and that it was communicated to the petitioner before adjusting the refund. Although the respondents purport to contend that proper procedure had been followed, record does not bear that there had been any communication made to the petitioner as to its submissions being not acceptable before or at the time of making the adjustment. Decisions in the cases of A. N. Shaikh [ 1986 (3) TMI 15 - BOMBAY HIGH COURT ], Hindustan Unilever Ltd. [ 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondents ORAL JUDGMENT (PER : SUNIL P. DESHMUKH, J.) 1. Rule. Rule made returnable forthwith and heard learned advocates for the parties, finally, by consent. 2. The petitioner is a telecommunications company engaged in offering services as referred to in the writ petition. Petitioner had filed its return of income for the Assessment Year (AY) 2019-20 of total income of ₹ 638,05,85,060/- and ₹ 220,62,55,842/- as total tax on said income. Petitioner had claimed a credit of ₹ 425,84,02,174/- as tax paid in the form of Tax Deducted at Source (TDS) of ₹ 425,83,76,387/- and Tax Collected at Source (TCS) of ₹ 25,787/- and had claimed refund of ₹ 205,21,46,330/-. Processing of said return had been getting obfuscated and prolonged at the end of the respondents and the petitioner had been before this court in writ petition bearing (Lodging) No. 6965 of 2020. Said writ petition had been disposed of by this court on 11th January, 2021 directing to release due refund amount with interest within a period of two weeks from the date of receipt of the order. 3. Petitioner had forwarded a copy of aforesaid order dated 11th January, 2021 to the respondents on 14th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le, the petitioner had informed the respondents that it had requested to fix stay applications for AYs 2007-08 and 2008-09. 7. On 1st February, 2021, the petitioner found that demands pertaining to AY 2007-08 had been stopped appearing as outstanding and demand pertaining to AY 2008-09 had been reduced as on 31st January, 2021 on the income tax e-filing portal and date of last refresh mentioned therein was 31st January, 2021. 8. Since the petitioner had neither received any communication from the respondents nor the amount of refund, it had written on 2nd February, 2021 to respondents that there has been no communication with regard to refund and that it was surprised to see on 1st February, 2021 that online income tax e-filing portal suggested that demand for AY 2007-08 is no longer outstanding and for the next AY 2008-09, it had been reduced and clarification was sought in this respect as to whether refund of AY 2019-20 was adjusted against these demands, reiterating that demands for said AYs were stayed and could not be recovered. 9. Petitioner noticed, when status of income tax refund for AY 2019-20 on Tax Information Network of the Income Tax Department available on the websit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... currently not recoverable (on account of stay by ITAT), including that stay in respect of demands for AYs 2007-08 and 2008-09 was not in operation. In short, it is submitted that it is not the case that the petitioner had no communication/intimation with regard to proposed adjustment. 12. It is referred to that stay to demands for AYs 2007-08 and 2008-09 expired on 15th July, 2020 and 7th April, 2020 and during hearing it was enquired with the petitioner as to whether there had been further stay granted and the assessee had not produced any stay order. It is contended that the suo motu writ petition, referred to by the petitioner was in context of restraint on eviction by public authority and Union of India had not been a party and no directions were issued with regard to the Act. It is under these circumstances, while two weeks period was to expire, demands were adjusted. 13. It is submitted that procedure, as per provisions of the Act had been followed before adjusting the demands under section 245 of the Act and there is an acknowledgment with respect to the same vide petitioner s e-mail dated 22nd January, 2021. It is being referred to that while the stay had been operating, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st due refund amount to petitioner for AY 2019-20, which is absolutely without authority of law and without jurisdiction and an act which is patently capricious. 18. In support of his submissions, Mr. Mistri purports to refer to and rely on a decision of division bench in the case of A. N. Shaikh and Others V/s Suresh B. Jain , Income Tax Reports Vol.165, page 86, wherein it has been found that Intimation given in the assessment order for 1983-84 that the tax liability of the respondent (original petitioner) came to ₹ 7,47,732/- and that the amount of refund for the previous assessment year 1982-83 is adjusted against the said liability does not amount to intimation in writing as contemplated by section 245. Section 245 clearly requires a previous intimation of the proposed action for adjustment and not simultaneous intimation. 19. Yet another division bench judgment of this court in the case of Hindustan Unilever Ltd., V/s Deputy Commissioner of Income Tax and Others , [2015] 377 ITR 281 (Bom) has been referred to. It has been observed in said judgment that Giving of prior intimation under section 245 of the Act is mandatory, the purpose being to enable the party to point ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eply filed by the respondents is even more contumacious wherein it is purportedly contended that orders of this court in suo motu writ petition would hardly put on hold adjustment of refund. 22. He submits that in the present matter, neither any notice had been issued to the petitioner under section 245 of the Act nor any order has been passed on the submission and/or the objections inasmuch as there is no communication of orders to the petitioner. He, thus, urges to allow the writ petition. 23. Mr. Suresh Kumar, learned advocate appearing for the Revenue, however, submits that the record sufficiently reveals that it is not the case that the petitioner had no idea that the department is purporting to have adjustment of refund towards outstanding demands. An intimation about adjustment would be considered, had been given under the intimation pursuant to section 143 (1) of the Act. 24. He submits that petitioner had been given opportunity and had been before the authorities on 21st January, 2021 over the issue of adjustment of refund in respect of AYs 2007-08, 2008-09. Assuming that the orders cover only eviction / dispossession of persons, he purports to submit that order of high co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no record made available by the respondents about any separate intimation being issued to the petitioner under section 245 of the Act for adjustment of demands from the refund from AY 2019-20 as referred to under note in intimation pursuant to section 143 (1) of the Act. The affidavit in reply is silent over the same. 28. It is not the case of the respondents that revenue officer had passed an order, inter alia, with regard to contention that there is no receipt of intimation under section 245 of the Act at the end of the petitioner and reasons were recorded as to why those are not sustainable and that it was communicated to the petitioner before adjusting the refund. 29. Although the respondents purport to contend that proper procedure had been followed, record does not bear that there had been any communication made to the petitioner as to its submissions being not acceptable before or at the time of making the adjustment. 30. Decisions in the cases of A. N. Shaikh , Hindustan Unilever Ltd., and Milestone Real Estate Fund (supra) relied on, on behalf of the petitioner have not been met with by the respondents nor it is the case of the respondents that any other course could b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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