TaxTMI 
TaxTMI 
2021 (5) TMI 452
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.... 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 Respondents to issue forthwith the refunds due to the Petitioner in relation to the Assessment Years 2002­-03,2006­-07 to 2016­17 where the refund is due to the Petitioner immediately without any further delay; (b) Direct the Respondent to respond to the stay applications of the Petitioners in reasonable time without undue delay and adjustments of refund. (c) pending the admission, hearing and final disposal of this petition, to stay adjustment or recovery again demand for AY 2017­-18,2018­19 and 2019-­20 (d) any other and further relief deemed just and proper be granted in the interest of justice; (e) to provide for the cost of this petition." 6. Brief facts of the case are that the petitioner is a limited company incorporated under the provisions of the Companies Act, 1956. The petitioner company is formed to implement the directives of the High Court of Gujarat to treat effluent and hazardous waste of Vapi Industrial area. The petitioner is a no....
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.... of ITAI order is admitted in Tax Appeal 1379 of 2018 and is pending for final hearing Nil Order giving effect to ITAT by AO dated 26.10.2018 A-7 8 12-13 No scrutiny assessment But the Refund arising is adjusted against the (non-existing) demand of AY 2002-03 with credit date 21.04.2014 68,16,580/(arising out of advance tax, TDS) 154 order A-8 9 13-14 Departmental appeal arising out of order of CIT(A) is filed in ITAT as 153/SRT/2018 and is pending for hearing 10,62,410/- Order giving effect to CIT(A) by AO dated 18.01.2018 A-9 10 14-15 Departmental appeal arising out of order CIT(A) is filed in ITAI as 732/SRT/2018 and is pending for hearing 3,73,54,430/-(Working sheet not provided) Order giving effect to CIT(A) BY AO dated 14.07.2020 A-10 11 15-16 Petitioner has succeeded in appeal before CIT(A), Departmental has not yet filed appeal before ITAI 11,03,679/-(Working sheet not provided) Order giving effect to CIT(A) BY AO dated 13.07.2020 A-11 12 16-17 Petitioner has succeeded in appeal before CIT(A), department has not yet filed appeal before ITAI 1,31,82,538/(Working sheet not provided) Order giving effect to CIT(A) by AO dated 13.07....
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....s preferred this petition with the aforesaid prayers. 12. The coordinate bench of this Court (Coram : Hon'ble Mr. Justice J.B. Pardiwala and Hon'ble Mr. Justice Ilesh J. Vora) passed the following order on 12.01.2021 : "1. We have heard Mr. B.S.Soparkar, the learned counsel appearing for the writ applicant. 2. Let Notice be issued to the respondents, returnable on 09.02.2021. We are of the view that during the interregnum period, the Deputy Commissioner of Income Tax (Appeals), Vapi Circle, Vapi, is expected to look into the application filed by the writ applicant dated 30.09.2020 (at Annexure E to the writ application) at the earliest and take appropriate decision on the same in accordance with law. We also expect the Deputy Commissioner of Income Tax (Appeals), Vapi Circle, Vapi, to look into the applications filed by the writ applicant over a period of time making a request for stay of 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."....
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.... appellate authority. It was therefore, submitted by learned Senior Advocate Mr. Soparkar that the order rejecting the application preferred by the petitioner under section 220(3) of the Act is liable to be quashed and set aside and complete stay of the outstanding demand raised against the petitioner is required to be granted in addition that outstanding refund due to the petitioner should also be directed to be paid within a stipulated time. 16. Reliance was placed on the decision of this Court in case of Madhu Silica (P) Ltd. v. Commissioner of Income­tax reported in (1977) 227 ITR 350 and decision of Bombay High Court in case of IDBI Federal Life Insurance Co. Ltd. Mumbai v. The Deputy Commissioner of Income­tax 6(3)(1), Mumbai & Ors dated 17.3.2017 in Writ Petition No.639/2017 in support of the above submissions. 17. On the other hand, learned Standing Counsel Ms. Kalpana Raval assisted by learned advocate Mr. Nikunt Raval submitted that the petitioner has erroneously claimed that it has succeeded in appeals for AYs 2006­2007 to AY 2016­-2017. It was pointed out that the matter is sub­judice and pending before this Court or the ITAT and has not achieved f....
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....der of rejection of stay application of the petitioner and further the respondents were justified in adjustment of the refunds due to the petitioner for earlier years against the outstanding demand. 19. Having heard the learned advocates for the respective parties and having gone through the materials on record, it emerges that the outstanding demand raised by the respondent against the petitioner for AYs 2017­-2018, 2018-2019 and 2019­-2020 pertains to denial of exemption benefit to the petitioner under sections 11 and 12 of the Act, 1961 treating the petitioner liable to pay the tax on the income assessed on denial of concept of mutuality contrary to the decision of the appellate authority in favour of the petitioner. It appears that the respondents have ignored the provisions of sub­section(6) of section 220 which reads as under : "220(6) Where an assessee has presented an appeal under section 246 [or section 246A] 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....
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.... period, say upto 6 months, or if the assessee has not cooperated in the early disposal of appeal, or where a subsequent pronouncement by a higher appellate authority or court alter the above situation; (e) reserve a right to adjust refunds arising, if any against the demand. (iii) Payment by insalments may be liberally allowed so as to collect the entire demand within a reasonable period not exceeding 18 months. (iv) Since the phrase 'stay of demand' does not occur in section 220(6) of the Income-tax Act, the Assessing Officer should always use in any order passed under section 220(6) [or under section 220(3) or section 220(7)], the expression that occurs in the section viz, that he agrees to treat the assessee as not being in default in respect of the amount specified, subject to such conditions as he deems fit to impose. (v) While considering an application under section 220(6), the Assessing 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 fo....
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....the issue arising in the appeals of AYs 2017-2018, 2018­-2019 and 2019­-2020 which is pending before CIT(Appeals) stand concluded as of now, in favour of the petitioner­assessee by order of the Tribunal for earlier assessment years, it would be appropriate to direct the respondent no.2 Principal CIT to grant stay of the demand raised by the Assessing Officer for the assessment years 2017­-2018, 2018­-2019 and 2019-2020 till such time as CIT (Appeals) decides the appeals of the petitioner. 24. With regard to the prayer of the petitioner to grant refund for the earlier years is concerned, where refund is due to the petitioner­assessee, pursuant to the order giving effect passed by the Assessing Officer on account of the appeals preferred by the petitioner being allowed by the Tribunal, issue is no more res­integra. This Court in case of Jugal Kishore Mahendra Biyani v. Income Tax Officer reported in (2020) 114 taxmann.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 ....