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TMI Blog2021 (11) TMI 1158X X X X Extracts X X X X X X X X Extracts X X X X ..... Petitioner as stated in the Petition. Therefore, our answer to Issue No.(i) is in negative, the notice as required under Section 245 of the Act has not been given. Effect of failure to give such notice , it is settled law that non-giving of intimation in writing prior to setting off of the amount payable against the amount to be refunded is fatal. This Court, in Jet Privilege Private Limited [ 2021 (8) TMI 593 - BOMBAY HIGH COURT] has held that the requirement of prior intimation under Section 245 of the Act was a mandatory requirement and failure to comply with this mandatory requirement of prior intimation would make the entire adjustment as wholly illegal and therefore Respondents could not have made the adjustment as they wanted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such adjustment. 2. The issues which can be narrowed down are (i) whether Respondent gave any such intimation required under Section 245 of the Act, (ii) if such intimation has not been given, the effect thereof and (iii) the consequence of the demand outstanding on the refund to be made to Petitioner. As to Issue No.(i), Petitioner has made an averment in the Petition that no intimation under Section 245 of the Act was given before making any adjustment. In its Affidavit-in-Reply, Respondent No.1 states that the said averment of Petitioner relates to Respondent No.2 and it is for Respondent No.2 to respond. Respondent No.1 therefore does not deny the averment of Petitioner that no such notice was issued. Respondent No.2, in its Affidav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come Tax-5(2)(1), Mumbai Ors. Oral Judgment dated 09/08/2021 in Writ Petition No.40 of 2021, has held that the requirement of prior intimation under Section 245 of the Act was a mandatory requirement and failure to comply with this mandatory requirement of prior intimation would make the entire adjustment as wholly illegal and therefore Respondents could not have made the adjustment as they wanted to. Paragraphs 7, 8 and 9 of Jet Privilege Private Limited (supra) read as under : 7. For ease of reference, we shall quote Section 245 of the Act, which read as under ; 245. Set off of refunds against tax remaining payable 2 Where under any of the provisions of this Act, a refund is found to be due to any person, the [Assessing] Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elied upon by Mr. Pardiwalla. 9. The fact that respondent has not followed the mandatory prior requirement of intimation under Section 245 of the Act would make the adjustment wholly illegal and therefore, respondent was clearly in error in not refunding the amount. 5. In the circumstances, as a consequence, answering Issue No. (iii), Petitioner will be entitled to the refund of the entire amount of ₹ 306,70,93,992/- together with accumulated interest, if any, in accordance with law. This refund shall be given within 6 weeks from today. 6. In any event, on the demand of Respondent in the cases outstanding against Petitioner, according to Petitioner, only cases for 3 years, i.e., AY 2015-16, AY 2016-17 and AY 2017-18 are p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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