2021 (11) TMI 1158

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....as not refunded this amount. According to Respondent, it is entitled to adjust this refund amount against the demand that it has against Petitioner. According to Petitioner, the only demand that was outstanding in their case was for AY 2015-16, AY 2016- 17 and AY 2017-18 where a total demand of Rs. 620,17,00,418/- has been made. Petitioner denies that any amount is payable by Petitioner to Respondent. Mr. Mistry states that in any event, Respondent was not entitled to adjust the admitted refund amount of Rs. 306,70,93,992/- because Respondent has not given the mandatory intimation required under Section 245 of the Income Tax Act, 1961 (hereinafter referred to as 'the Act') before making any such adjustment. 2. The issues which can ....

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....ed before Kochi Refineries Limited was merged with Petitioner. Even the outstanding demand table annexed to the said notice dated 01/01/2021 does not pertain to any of the 15 refunds totalling to Rs. 306,70,93,992/- to be given to 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. 4. As regards the Issue No.(ii) the 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 Vs. Deputy Commissioner of Income Tax-5(2)(1), Mumbai & Ors. Oral Judgment dated 09/08/2....

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....unt only after giving an intimation in writing to the assessee of the action that he proposed to take under this section. Therefore, it clearly requires the intimation to be given prior to the officer sets off the amount payable against the amount to be refunded. It can be neither simultaneous nor subsequent. We find support for this view in Suresh B. Jain Vs. A.N. Shaikh, Sixteenth Income-tax Officer [1987] 165 ITR 151 (Bom.), confirmed by the Division Bench of this court in A.N. Shaikh, Sixteenth Income-tax Officer Vs. Suresh B. Jain [1987] 165 ITR 86 (Bom.) and in Hindustan Unilever Limited Vs. Deputy Commissioner of Income-tax-1 (1) [2015] 377 ITR 281 (Bom.) relied upon by Mr. Pardiwalla. 9. The fact that respondent has not followed....