9911796707
TMI Blog2021 (4) TMI 922X X X X Extracts X X X X X X X X Extracts X X X X ..... paid in the form of Tax Deducted at Source (TDS) of Rs. 425,83,76,387/- and Tax Collected at Source (TCS) of Rs. 25,787/- and had claimed refund of Rs. 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 January, 2021 with a request to comply with the same and to release the refund with interest. 4. Respondent No. 6 issued an intimation under section 143 (1) of the Income Tax Act, 1961 (Herein after "the Act"), on 17th January, 2021 and had determined income tax refund with interest payable to the petitioner to the tune of Rs. 227.27 crore, referring, inter alia, to that certain demands were outstanding, including those for the AYs 2007-08 (Rs. 153.91 crore) and 2008-09 (Rs. 138.26 crore), further referring to that intimati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fund, 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 website of National Securities Depository Limited (NSDL) was checked, that refund of AY 2019-20 was adjusted against the outstanding demands. Thus, the petitioner is before this court seeking writ of certiorari or writ of its nature to quash and set aside the adjustment of demands of AYs 2007-08 and 2008-09 against the determined refund due for the AY 2019-20. Petitioner also seeks writ of mandamus directing respondent No. 3 to release refund of AY 2019-20 along with interest as determined under the intimation dated 17th January, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duced 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, as contended on behalf of the petitioner and had been extended till 31st January, 2021, then no plausible explanation is coming forth from the petitioner as to why the petitioner had got stay orders extended in respect of other AYs until September, 2020 and why argument had not been advanced that the stay orders were automatically extended. 14. It is referred to in the reply that the period granted by this court was to expire on 28th January, 2021 and, as such, approval to adjustment was given on 27th January, 2021. 15. It is, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Rs. 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 out that there are factual errors or some further developments, if any ..... the officer of the Revenue exercising power under section 245 of the Act must apply his mind to it and must record reasons why the objection is not sustainable and also communicate these to the party before or at the time of adjusting the refund. This alone would ensure that the power of adjustment under section 245 of the Act is not exercised arbitrarily." 20. Learned senior advocate also refers to a decision of division bench of this cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 court in suo motu petition would not be legitimately said to cover matters before ITAT. He submits that the order dated dated 11th January, 2021, having regard to facts and circumstances, has been complied with. Order for adjustment of refund has been made before expiry of period of fourteen days from the date of orders of the court dated 11th January, 2021. He submits that the provisions of the Act under section 245 of the Act have been duly followed before adjusting outstanding demands. He, therefore, su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 be adopted for adjustment of refund. There is stark absence of material showing compliance of requirements viz: application of mind to contentions on behalf of the petitioner, reasoned order and its communication to the assessee. The facts and circumstances lend lot of substance to submissions advanced on behalf of the petitioner that there is absence of compliance of requirements under section 245 of the Act, coupled with observations of high court in the decisions relied upon on behal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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