2023 (9) TMI 694

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....on behalf of the respondent/revenue. 3. In view of the directions that we propose to pass, Mr Agarwal says that a counter-affidavit need not be filed in the matter and that he will argue based on the record presently available with the court. 3.1 Therefore, with the consent of the learned counsels for the parties, the writ petition is taken up for final hearing and disposal at this stage itself. 4. The short issue which arises for consideration in this writ petition is as to how the Central Board of Direct Taxes (CBDT)'s Office Memorandum dated 29.02.2016, read with the amendment made on 25.08.2017, is to be interpreted. 5. The facts and figures set forth in the writ petition are supported by documents, which currently are not in disput....

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.... inclusive of Rs. 11,04,22,633/-[Rs. 11,03,97,170/- + Rs. 25,463/-] and Rs. 14,11,32,594/-. 12. Based on the aforesaid, it is submitted by Mr Salil Aggarwal, learned senior counsel, who appears on behalf of the petitioner/assessee, that contrary to the prescription of the aforementioned OM, the respondents/revenue have recovered by way of taxes, an amount in excess of 20%, even while the petitioner/assessee's appeal is pending adjudication before the Commissioner of Income Tax (Appeals) [in short, "CIT(A)"]. 13. On the other hand, Mr Sunil Agarwal, learned senior standing counsel, who appears on behalf of the respondents/revenue, submits that if the aforementioned OM is applied, then the amount that the respondents/revenue could have reco....

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....at a certain amount beyond 20% would perhaps be refundable, but not an amount which the petitioner/assessee seeks as refund, which is, Rs. 16,08,25,490/-. 15. We have heard the learned counsels for the parties and perused the record. 16. As indicated hereinabove, the facts and figures placed on record by the petitioner/assessee are not in dispute. 17. The aggregate tax liability which got crystallized for the AY in issue, i.e., AY 2021-22, was Rs. 44,10,05,569/-. Therefore, in our view, any amount towards tax recoverable, either directly or indirectly, would fall within the stipulation of 20%, as indicated in the aforementioned OM. 18. What is not in dispute is that Rs. 11,04,22,633/- has already been deposited by the payers of the peti....