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2023 (2) TMI 529 - GUJARAT HIGH COURTStay of demand - grant of stay of demand till the disposal of the First Appeal on payment of 15% of the disputed demand - respondent refused to refund the excess amount adjusted beyond 20% of the demand raised by the respondent - petitioner specific grievance that adjustment, which has been made against the refund to be granted as high as 65% of the demand raised, which is more than 20% prescribed by the said instructions dated 31.07.2017, HELD THAT:- This is a classic case where even before this Court at the time of filing of affidavit-in-reply, the instructions given to the counsel is to the effect that there was a complete absence of any application when in fact at the time of filing of the appeal, the application has been made and assuming the application was prior in point of time, the gap is only of two days and that kind of a hyper technicality would hardly be expected when otherwise the assessee has fulfilled all other requirements for him to be entitled to the benefit of these circulars. In fact, even the date of 28.04.2015 he is not to be amplified in as much as the endorsement of the authority concerned is indicative of the same being of 30.04.2015. There has been an application for rectification of the Assessment Order on 31.03.2015 that may not be treated as an application for the purpose of exercise of the powers given under the circular. The petitioner’s express request to the respondent to keep the demand in abeyance till the time the appeal of the assessment year 2012-13 is disposed of ought to have been considered. As noticed that the adjustments which have taken place over the period of time by disregarding such a request has adjusted the refund to the tune of nearly 65%. When, in fact, 20% of the amount would come to Rs.4,10,67,754/- rounding the same that of to Rs.4.11 Crore, the remaining amount could not have been continued to be adjusted against the demand which is yet to be adjudicated by the CIT (Appeals). Accordingly, this petition preferred by the petitioner deserves to be allowed quashing and setting aside the order whereby the respondent refused to refund the excess amount adjusted beyond 20% of the demand raised by the respondent for the assessment year 2012-13. The only reason one could notice in the communication dated 11.01.2022 for denying and not acceding to the request of the petitioner is that the adjustment of the refund against the demand is done by the CPC system in accordance with the total outstanding demand. This has no reference whatsoever of both the CBDT Office Memorandums referred to hereinabove. This highhanded approach on the part of the respondent is neither palatable nor endorsable. Therefore, it deserves interference at the ends of the Court. Resultantly, this petition is allowed. The respondent authority is directed to refund the excess amount of Rs.4.11 Crore (rounded of) adjusted beyond 20% demand raised by the respondent for the assessment year 2012-13. We also direct further the assessee to cooperate in the early disposal of the appeal. If the assessee fails to cooperate in the disposal of the appeal, the respondent shall be at liberty to approach this Court for review its order.
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