2016 (9) TMI 62

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ort facts involved in the writ petition would disclose that the petitioner, being an assessee before the 1st respondent under the Income Tax Act, 1961 (hereinafter referred to as 'the IT Act') filed returns for the assessment year 2012-13 admitting income of Rs. 80,94,44,360/-. The assessing officer had accepted the return. However, the matter was taken for scrutiny and assessment was completed as per order dated 30/01/2015 under Section 143(3) of the IT Act. Ext.P1 is the said order. A letter dated 03/02/2015 was issued to the petitioner by which petitioner was informed that the refund for the assessment year 2007-08 to 2011-12 is proposed to be adjusted against the demand for Rs. 340,93,85,170/- raised in the assessment year 2012-....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....deduction of surcharge on sales tax and turnover tax. The refunds in respect of the respective assessment years have arisen on account of deletion of similar disallowances for the earlier assessment years. It is stated that the order passed by the Appellate Tribunal have not become final and departmental appeals are pending before this Court. Further reference is made to Section 245 of the IT Act wherein power is available to the assessing officer to set off the amount to be refunded against any amount remaining payable under the Act. It is submitted that when such a power had been exercised, the petitioner cannot legally sustain a claim for payment of the amount. 5. Petitioner had filed a reply stating that, it was on receipt of Ext.P2 ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....mains that once Ext.P10 series had been issued and the appellate authority had taken cognizance of the said fact while granting stay, a direction to refund the amount, as claimed, is not sustainable. As rightly pointed out by the learned counsel for the petitioner, under normal circumstances, stay could be obtained by remitting 15% of the amount demanded. But the said provision may not apply when a right to set off is available to the Department in terms of Section 245 of the Act which reads as under: "245. Set off of refunds against tax remaining payable. Where under any of the provisions of this Act, a refund is found to be due to any person, the Assessing Officer, Deputy Commissioner (Appeals), Commissioner (Appeals) or Chief Commi....