2015 (5) TMI 313 - HC - Income Tax

High Court clarifies Income-tax Dept. procedures during appeals

The High Court of Calcutta, in a judgment by I. P. Mukerji J., addressed recovery proceedings initiated by the Income-tax Department during the pendency ... Refund set off against the Income-tax demand - Held that:- If an amount of refund of ₹ 42,96,720 has been set off against the above Income-tax demand, by the Income-tax authorities without notice to the writ petitioners they have acted contrary to this Division Bench judgment of CIT v. J. K. Industries Ltd.[2000 (3) TMI 29 - CALCUTTA High Court] wherein observed that the Income tax Department could not unilaterally adjust the amount due on refund against a tax demand without giving a notice to the assessee If that is the case, the Department will immediately remit that amount to the account of the writ petitioners with the Bank of Baroda. It will be open to the Income-tax Department to take steps with regard to the same in recovery proceedings. Such transmission of the above amount to the bank account of the writ petitioners has to be made within four weeks of communication of this order. Direct the Commissioner (Appeals) to dispose of the appeal and stay application pending before him within six weeks of communication of this order. Issues:1. Recovery proceedings initiated by Income-tax Department during pendency of appeal and stay application.2. Adjustment of refund amount against tax demand without notice to assessee.3. Compliance with previous court orders and directives.Issue 1: Recovery Proceedings During Appeal and Stay ApplicationThe writ petitioners contested the swift realization of &8377; 50,42,410 by the Income-tax Department during the pendency of their appeal and stay application. The petitioners argued that the action was arbitrary and relied on judgments from the Delhi and Bombay High Courts criticizing hasty recovery without allowing the assessee to appeal and obtain a stay. However, the court differentiated this case, noting that the appeal had been pending for over a year and the stay application for four months, indicating no sudden coercive action. The court emphasized the need for prompt execution or recovery to avoid difficulties in realizing dues.Issue 2: Adjustment of Refund Amount Without NoticeThe petitioners claimed that &8377; 42,96,720, due to them as a refund, was set off by the Income-tax authorities against the total demand without any notice. Referring to a Division Bench judgment, the court held that unilateral adjustment without notifying the assessee was impermissible. Consequently, the court directed the Department to promptly remit the set-off amount to the petitioners' bank account within four weeks, allowing the Department to pursue recovery proceedings separately.Issue 3: Compliance with Previous Court OrdersThe court acknowledged a prior order by Justice Indira Banerjee directing expeditious disposal of the appeal and stay application. The petitioners did not challenge this order, leading to an estoppel against contending otherwise. However, the court found support for the petitioners in a Division Bench judgment emphasizing the necessity of notifying the assessee before adjusting refund against tax demand. In line with these considerations, the court directed the Commissioner (Appeals) to resolve the pending appeal and stay application within six weeks.In conclusion, the High Court of Calcutta, in the judgment delivered by I. P. Mukerji J., addressed the issues raised by the writ petitioners regarding recovery proceedings, adjustment of refund amount, and compliance with previous court orders. The court balanced the need for prompt recovery with the requirement of notifying the assessee before adjusting refund against tax demand. The judgment emphasized adherence to legal principles and directives while ensuring due process in tax matters.