Home Case Index All Cases Income Tax Income Tax + HC Income Tax - 2011 (11) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2011 (11) TMI 312 - HC - Income TaxApplication for stay of demand - adjustment of refund of earlier A.Y.s towards demand payable of current year u/s 245 - Whether the stay application under Section 220(6) was maintainable when the petitioner had filed an appeal before the ITAT against the order passed u/s 143(3) read with Section 144C – Held that:- In such case, an assessee is required to file an appeal before the ITAT. Appeal under Section 246 or 246A is not maintainable. ITAT has power to grant stay as an inherent power vested in the appellate authority as well as under Section 254 and the Rules. Whether adjustment under Section 245 can be regarded as recovery and the orders passed by the authorities/tribunal – Held that:- The term “recovery” is comprehensive and includes adjustment thereby reducing the demand. However, when an order of stay of recovery in simplistic and absolute terms is passed, it would be improper and inappropriate on the part of the Revenue to recover the demand by way of adjustment. When an issue or contention has been decided in favour of the assessee in earlier years whether adjustment under Section 245 of the Act is permissible in respect of arrears pertaining to the same issue or subject matter – Held that:- A mechanical invocation of the power under section 245 irrespective of the fact situation, can lead to misuse of the power by the Revenue in order to delay the refund till such time a fresh demand for the subsequent assessment years is finalized. Assessee would not be able to get the refund at all Viability of application for stay of demand on ground that additions made are covered by earlier orders in favor of assessee by different appellate authorities - Held that:- Decisions of the CIT (Appeals) or the ITAT in favour of the assessee should not be ignored on the ground that current assessment order has been passed u/s 144C i.e. after reference to the Dispute Resolution Panel. Decisions of CIT & ITAT do not become inconsequential. It is held that:- Action of the Revenue in recovering the disputed tax in respect of additions made on issues which are already covered against them by the earlier orders of the ITAT or CIT (Appeals) is unjustified and contrary to law. Accordingly, directions to refund are issued. ITAT is directed to quantify and calculate the exact amount of refund related to several other disputed additions covered by the earlier orders of the ITAT/CIT (Appeals). Writ petition answered against the Revenue.
|