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2017 (8) TMI 1300 - CALCUTTA HIGH COURTSuperannuation fund - Withdrawing the approval of the petitioner under Rule 91 of the Income Tax Rules, 1962 - return of excess deposit into the fund by the employers - Held that:- The authorities have to find out the quantum of payment required to be made by the respondent no.3, the quantum paid by the respondent no. 3 and the position after taking into account the settlement arrived. If such contentions are found factually correct, then, the question of applicability of Rule 91(2) of the Income Tax Rules, 1962 for the purpose of withdrawing the approval would not arise. On the other hand, if the claim of excess payment is not substantiated to be correct, then the Income Tax authority would be entitled to invoke Rule 91(2) of the Income Tax Rules, 1962 for the purpose of withdrawing the approval granted to the first petitioner. Again as rightly pointed out on behalf of the respondent nos. 8 and 9, such an issue has not been dealt with by the impugned order. As contended on behalf of the petitioners that, such issue has not been raised, as the parties are ad idem on the fact that, there is an excess payment made by the respondent no. 3 warranting the first petitioner to refund the same. With respect, the issue was raised by the respondent no. 3 in the reply dated June 8, 2007. The issue is one of mixed question of fact and law. The showcause notice and the reply thereto raises such an issue. The parties at issue are the Income Tax department and the respondent no. 3 as well as the first petitioner. It cannot be said, in the facts of the present case that, the Income Tax department had accepted that, there is an excess payment made by the respondent no. 3 to the first petitioner for the relevant years. The Income Tax department has also not accepted the quantum of the alleged excess payment. A consensus between the petitioner and the respondent no. 3 cannot bind the Income Tax department. In such circumstances, it would be appropriate to set aside the impugned order and remand the matter to the Income Tax authority for the purpose of deciding the show-cause notice and the reply thereto in accordance with law. Needless to say that, the Income Tax authority is at liberty to hear such parties and consults such documents as it deems appropriate. The authority will pass a reasoned order which it will communicate to the parties it has heard forthwith thereafter. It is expected that, the authority will complete the entire exercise within six weeks from the date of communication of this order to it.
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