AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2015 (7) TMI 55
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....ntire facts and circumstances of the case on record had ultimately allowed the Writ Petition by observing that the Respondent/Petitioner (In four Appeals) had made a request in their petition dated 28.03.2013 that the adjustment should not have been made, that too, simultaneously while sanctioning refund, which should have been sanctioned as early as in January, 2014. Further, the Learned Single Judge had directed the 1st Appellant/1st Respondent to restore the refund claims and sanction refund to the 1st Respondent/Petitioner within a period of two weeks from the date of receipt of copy of this Order etc., 3. Moreover, the Learned Single Judge had further added that the 1st Appellant/1st Respondent shall take up for consideration, the Petition dated 28.03.2013, hear the 1st Respondent/Petitioner in person and pass Orders on merits and in accordance with Law within a period of two weeks thereafter. 4. The Learned Counsel for the Appellants (in four Writ Appeals) submits that the Orders of the Learned Single Judge dated 18.11.2014 passed in W.P.Nos.15939, 21478, 21479 and 21480 of 2014 are against probabilities and evident of the facts placed before him and also contrary to the we....
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....lieu of the subsisting demand which has been scrupulously followed by the 1st Appellant. 10. The core argument advanced on behalf of the Appellants is that when the Respondent/Writ Petitioner sought for a purported Stay under Section 220(6) of the Income Tax Act in terms of its letter dated 28.03.2014 for the Assessment Year 2011-2012, no appeal in respect of the said 'Assessment Year' was even filed and pending and as such, the issue for considering the stay petition did not arise. 11. The Learned Counsel for the Appellants submits that the Learned Single Judge had failed to take note of an important fact that the disposal of Stay Petition under Section 220(6) of the Income Tax Act by the 'Assessing Officer' could be carried out only in circumstances where a Statutory Appeal in respect of Assessment Years were filed and pending on the said date. 12. In the present case, the Statutory Appeal before the Appellate Authority) (CIT-A) itself was filed only on 25.04.2014 and as such the question of Assessing Officer being able to consider the Stay Application atleast before the said date does not arise. 13. Apart from the above, the plea taken on behalf of the Appell....
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....ties to do is to make a readjustment after giving an intimation in writing to such person of the action proposed to be taken under this Section. The authorities are not required to go beyond that the section itself requires them to do. 17. In response, it is the submission of the Learned Counsel for the Respondent/Writ Petitioner that the Income Tax Appellate Tribunal had decided the issue on merits repeatedly in favour of the Respondent for the last three Assessment Years, viz., Assessment Years 2008-2009, 2009-2010 and 2010-2011 respectively. Furthermore, as against the Orders of the Income Tax Appellate Tribunal, the 1st Appellant's Department had not obtained Stay and therefore, the Orders of the Income Tax Appellate Tribunal still holds the field and binding on the Appellants. 18. The Learned Counsel for the Appellants brings it to the notice of this Court that inspite of the Income Tax Appellate Tribunal's Order in respect of previous years, the Appellant's Department had not moved Stay of the said Orders, therefore, this Court, had passed the Orders confirming his demand for the Assessment year 2011- 2012 (Subsequent Assessment Year) on the very same issues onc....
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....ding (a) expiry of time limit for filing an appeal; (b) disposal of a stay application, if any, moved by the assessee and for a reasonable period thereafter to enable the assessee to move a higher forum, if so advised. Coercive steps may, however, be adopted where the authority has reason to believe that the assessee may defeat the demand, in which case brief reasons may be indicated. (2) The stay application, if any, moved by the assessee should be disposed of after hearing and bearing in mind the guidelines in KEC International Ltd., V. B.R.Balakrishnan (2001) 251 ITR 158 (Bom). (3) If the Assessing Officer has taken a view contrary to what has been held in the preceding previous years without there being a material change in facts or law, that is a relevant consideration in deciding the application for stay. (4) When a bank account has been attached, before withdrawing the amount, reasonable prior notice should be furnished to the assessee to enable the assessee to make a representation or seek recourse in law. (5) In exercising the powers of stay, the Income-tax Officer should not act as a mere tax gatherer but as a quasi judicial authority vested with the public duty of protec....
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....er section 245 of the Act. Different parameters and considerations can be applied when a stay order is passed, against use of coercive methods for recovery of demand and when adjustment is stayed. Therefore, the Tribunal can stay adoption of coercive steps for recovery of demand but may permit adjustment under section 245. When and in what cases, adjustment under section 245 of the Act should be stayed would depend upon the facts and circumstances of the case. The discretion is to be exercised judiciously. The nature of additional resulting in the demand is a relevant consideration. Normally, if the same addition/disallowance/issue has already been decided in favour of the assessee by the appellate authority, the Revenue should not be permitted to adjust and recover the demand on the same ground. In exceptional cases, which include the parameters stated in Section 241 of the Act, adjustment can be permitted/allowed by the Tribunal. The petitioner was entitled to refund of Rs. 122.57 crores and Rs. 107.42 crores for the assessment years 2003-04 and 2005-06 respectively. In normal course, the refunds should have been paid by the authorities to the petitioner but for the adjustment a....
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....ssible for the Income-tax Officer to adjust the amount of refund due in respect of the earlier assessment order without giving prior notice and an opportunity of being heard to the petitioner. Shri Joshi relies upon the provisions of Section 245 of the Income-tax Act, 1961, which reads as under:- "245. Where under any of the provisions of this Act, a refund is found to be due to any person, the Income-tax Officer, Appellate Assistant Commissioner, Commissioner (Appeals) or Commissioner, as the case may be, may, in lieu of payment of the refund, set off the amount to be refunded or any part of that amount, against the sum, if any, remaining payable under this Act by the person to whom the refund is due, after giving an intimation in writing to such person of the action proposed to be taken under this Section." A mere perusal of this Section makes it clear that the Income-Tax Officer may, in lieu of payment of refund, set off the amount to be refunded against the sum payable by the person, but only after giving intimation in writing to such person of the proposed action. Shri Devadhar, learned counsel appearing on behalf of the respondents, had to concede that the Income-tax Office....
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....29. Also in the decision Japson Estates P.Ltd. V. Deputy Commissioner of Income-Tax and Another reported in (2006) 285 ITR at Page 40 at Special Page 44 it is observed and held in Paragraph Nos.8 to 10 as follows:- "...... 8. In this case, at the footnote of the intimation under section 143(1), it has been inscribed, Adjusted against demand (partly) for the assessment year 2003-2004 at Rs. 45,14,870 . By no stretch of imagination, can this intimation be treated as intimation under section 245 of the Act. It has been contended in the counter affidavit that the assessee did not communicate any reason to the Department as to why the adjustment as proposed in the intimation should not be made, but there is no such intimation of any proposed adjustment. It is only a notice under section 143(1) of the Act, in which it has been communicated that the amounts have already been adjusted. Therefore, there was no occasion for the assessee-petitioner to raise an objection to the adjustment. It may be true that section 245 of the Act does not contemplate a show-cause notice or an inquiry, but at the same time, it requires a prior intimation in writing, of the proposed action of adjustment. Admi....
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....Appellant/Department had confirmed and sanctioned the refund due to the Respondent as per Refund Order, but, had not issued the cheque in this regard. One cannot brush aside a primordial fact that ingredients of Section 245 of the Income Tax Act cannot be pressed into service either as a Lever or Premium in favour of the Revenue, in the considered opinion of this Court. 33. Added further, however, on going through the Impugned Order passed by the Learned Single Judge, this Court is of the considered view that the Learned Single Judge had rightly opined that the adjustment was not tenable in the peculiar facts and circumstances of the case. That apart, the fact of the matter is that notwithstanding the fact that the Respondent/Petitioner was entitled to get the refund even as early as in January, 2014 pertaining to four Assessment Years, the refunds were not processed and the matter was pending. 34. As such, this Court to prevent an aberration of justice and to promote substantial cause of justice, quashes the intimation dated 24.03.2014 under Section 245 of the Income Tax Act in respect of Assessment Year 2008-2009 (Against dues of Assessment year 2011-2012) the intimation dated ....