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TMI Blog2021 (5) TMI 452X X X X Extracts X X X X X X X X Extracts X X X X ..... This Court in case of AIR Conditioning Specialists Pvt. Ltd. v. Union of India [ 1995 (3) TMI 14 - GUJARAT HIGH COUR ] has held that it is settled law that unless and until decision is reversed by a superior Court, it holds the field and when a point is concluded by a decision by the higher Courts, all Subordinate Courts and authorities within the territory of the appellate authority are bound by it and must scrupulously follow the said decision in letter and spirit. Respondent no.1Assessing Officer is therefore, bound by the order passed by the Tribunal in the earlier years on the same issue of granting exemption from income tax to the petitioner. It may be true that the Assessing Officer would like to keep the issue live till the highest court concludes and arrive at final decision and therefore, may have taken a contrary view than the decision of the Tribunal but,in such circumstances, when the appeal is preferred by the assessee before CIT(Appeals) under section 246 of the Act, 1961, the assessee is entitled to get complete stay against the demand not by treating the assessee being in default in respect of amount in dispute in appeals. We are of the view that rejectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted:- 15-3-2021 - HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH AND HONOURABLE MR. JUSTICE BHARGAV D. KARIA Appearance: MR SN SOPARKAR SENIOR ADVOCATE WITH MR B S SOPARKAR (6851) for the Petitioner(s) No. 1 MRS KALPANAK RAVAL(1046) WITH MR NIKUNT RAVAL for the Respondent(s) No. 1,2 ORAL JUDGMENT (PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA) 1. Heard learned Senior Advocate Mr. S.N. Soparkar assisted by learned advocate Mr. B.S. Soparkar for the petitioner and learned advocate Mr. Nikunt Raval with learned Standing Counsel Ms. Kalpana Raval for the respondents. 2. The petitioner has tendered the draft amendment. The same is allowed in terms of the draft. To be carried out forthwith. 3. Rule. Learned advocate Mr. Nikunt Raval waives service of notice of rule on behalf of the respondents. 4. Having regard to the issues arising in this petition which are in a very narrow compass, the same is taken up for hearing with the consent of the learned advocates for the respective parties. 5. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for the following reliefs : (a) Direct the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal hearing 1,74,97,700/- Order giving effect to ITAT by AO dated 25.03.2014 A-2 06-07 (penalty) No appeal is filed against the order of ITAT of the deletion of penalty. ₹ 1,03,79,028/- are adjusted twice before the decision of appellate authorities. But are not refunded after the decision of appellate authorities. Both CIT(A) and ITAT deleted penalty A-2.1 3 07-08 Departmental appeal arising out of ITAT order is admitted in Tax Appeal 678 and 680 of 2012 and pending for final hearing 1,96,13,510/- Order giving effect to ITAT by AO dated 14.03.2014 A-3 4 08-09 Departmental appeal arising out of ITAT order is admitted in Tax Appeal 691 and 692 of 2012 and pending for final hearing 2,07,48,030/- Order giving effect to ITAT by AO dated 14.03.2014 A-4 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.07.2020 A-12 13 17-18 Assessment is framed u/s 143(3) and the demand raised of ₹ 6,78,90,372/- is requested to be stayed. Stay application is not decided by the Revenue despite reminders A-13 14 18-19 143(1) Intimation is issued disallowing exemption and rising demand of ₹ 16,41,93,510/- Stay application is failed. A-14 15 19-20 143(1) Intimation is issued disallowing exemption and raising demand of ₹ 16,53,67,377/- Stay application is filed. A-15 8. It is the case of the petitioner that though the petitioner has succeeded before CIT(Appeals), Tribunal and High Court, refund due to the petitioner have not been paid by the respondents. 9. Respondent no.1 Assessing Officer continues to assess the income of the petitioner without giving the benefit of exemption despite the petitioner succeeding befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f demand raised vide orders passed under Section 143 (1) and Section 143 (3) of the Income Tax Act, 1961 for different assessment years. Let this exercise be undertaken by the next date of hearing. The outcome of such exercise will be helpful to this Court in resolving the controversy. 13. Thereafter the following order was passed on 10.02.2021 : 1. We have heard Mr. S.N.Soparkar, the learned Sr. Counsel appearing for the writ applicant and Mrs. Kalpana K. Raval, the learned Sr. Standing Counsel appearing for the respondents. 2. Mrs. Raval submits that, she needs some time to look into the matter. Post this matter for final disposal on 17.02.2021. Till the next date of hearing, let there shall be an interim relief in terms of Para 7 (c). Reply, if any, shall be filed on, or before 15.02.2021 and copy of the same shall be furnished to the learned Additional Solicitor General of India appearing for the respondents. 14. Learned Senior Advocate Mr. S.N. Soparkar appearing for the petitioner submitted that the respondents did not comply with the directions as per the order dated 12.1.2021, wherein it was expected that the order would be passed in stay application for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vocate Mr. Nikunt Raval submitted that the petitioner has erroneously claimed that it has succeeded in appeals for AYs 2006 2007 to AY 2016 -2017. It was pointed out that the matter is sub judice and pending before this Court or the ITAT and has not achieved finality. It was submitted that the respondents were under legal obligation to adjust the refunds as per section 245 of the Income Tax Act,1961 after giving adequate opportunity to the petitioner and accordingly, the refunds due to the petitioner for earlier years were adjusted by the respondents against the outstanding demand. Reliance was placed on the decision in case of Vodafone Idea Ltd v. ACIT decided by the Supreme Court vide order dated 14.12.2018 in W.P. (Civil) No.2730/2018, wherein it is held that withholding of refund against demand payable for earlier years is justified. It was therefore, submitted that the respondents have rightly withheld the refund and adjusted the same against the outstanding demands as per the provisions of the Act,1961 after considering the representations made by the petitioner in consonance with the principles of natural justice. 18. It was further submitted that the petitioner is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 46A] the Assessing Officer may in his discretion and subject to such conditions as he may think fit to impose in the circumstances of the case, treat the assessee as not being in default in respect of the amount in dispute in the appeal, even though the time for payment has expired, as long as such appeal remains undisposed of. 20. Under section 119 of the Act, 1961, the Central Board of Direct Taxes may from time to time issue such orders/instructions/directions as it may deem fit to the income tax authorities for proper administration of the Act, 1961 and in exercise of such powers, the Board has issued instruction no. 1914 dated 2.2.1993 stating how the stay application filed by the assessee is to be disposed of. Guidelines for staying demand in the said instructions read as under : C. GUIDELINES FOR STAYING DEMAND (i) A demand will be stayed only if there are valid reason for doing so. Mere filing an appeal against the assessment order will not be sufficient reason to stay the recovery of demand. A few illustrative situation where stay could be granted are (a) if the demand in dispute related to issues that have been decided in assessee's favour by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer should consider all relevant factors having a bearing on the demand raised and communicate his decision in the form speaking order. 21. From the above provisions of the Act, 1961 and the instructions of CBDT, the respondents were required to use their discretion for granting stay, more particularly, when the Tribunal in earlier year has held in favour of the petitioner assessee and therefore, from the narration of the facts and the provisions noticed above, the conditions necessary for exercise of discretion in favour of the assessee under section 220(6) of the Act apparently exists in favour of the assessee in the present case. 22. This Court in case of AIR Conditioning Specialists Pvt. Ltd. v. Union of India and others reported in (1996) 221 ITR 739 has held that it is settled law that unless and until decision is reversed by a superior Court, it holds the field and when a point is concluded by a decision by the higher Courts, all Subordinate Courts and authorities within the territory of the appellate authority are bound by it and must scrupulously follow the said decision in letter and spirit. Respondent no.1Assessing Officer is therefore, bound by the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xmann.com 530(Gujarat) has held that when Revenue accepted that the assessee was entitled to refund as claimed and when the petitioner-assessee has made repeated requests and sent reminders to the respondent authority, if no refund is granted and now the contention is taken before this Court that under section 245 of the Act, refund cannot be granted as same is required to be adjusted against outstanding demand pending against the petitioner, cannot be accepted because, as of now as the demand raised against the petitioner for the assessment years 2017 -2018, 2018 -2019 and 2019 -2020 are already stayed by this order, the respondent authorities are required to process the refund payable to the petitioner and issue refund due at the earliest. 25. In view of the facts of the case, we dispose of this petition with a direction to the respondents to grant stay against outstanding demand for A.Y. 2017 -18 to 2019 20 during the pendency of the appeals before the CIT(Appeals) and further direct to release the refund to which the petitioner- assessee is entitled to for the earlier years from assessment year 2002 -2003 onwards in accordance with the provisions of section 244A(1) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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