TMI Blog2011 (12) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... situations. Thus, demand made by the A.O. on re-assessment itself becomes invalid and, therefore, no question of adjustment thereof arises. A.O. is directed to release the aforesaid amount. - Decided in favor of assessee. - W.P.(C) 6915/2011 - - - Dated:- 8-12-2011 - MR. JUSTICE RAJIV SAHAI ENDLAW, A.K. SIKRI, JJ. For Appellant: Mr. S. Ganesh, Sr. Adv. with Ms. Anuradha Dutt, Ms. Ekta Kapil, Mr. Pawan Sharma, Mr. Vinayak Srivastava, Ms. Roohina Dua, Advs. For Respondent : Mr. Sanjeev Sabharwal, Adv. The factual matrix of this writ petition need no elaborate narration as the issue involved is in a narrow compass. Without going into the details of the assessment proceedings in respect of assessment year 2003-04, suffice i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal before the CIT(A). Application for stay was also preferred. While the aforesaid stay application as well as appeal before the CIT(A) against the re-assessment order was pending, the return of the assessee for the assessment year 2010-2011 was processed under Section 143(1) of the Act. On passing assessment order under Section 143(1) of the Act, substantial amount of tax became refundable to the petitioner. However, while doing so, the Assessing Officer made the adjustment of Rs.17,98,64,094/- payable for the assessment year 2003-04 against the amount of refund due to the petitioner for the assessment year 2010-2011. The Assessing Officer also adjusted demand of Rs.6,56,14,927/- pertaining to the assessment year 2007-08, with which we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during the pendency of the writ petition which clearly suggest that no such course is even needed now and the petitioner would be entitled to the refund of the aforesaid amount. We may mention that same view was taken by the revenue while making computation under Section 10A of the Act, namely, computation was done by reducing telecommunication expenses incurred in foreign currency from export turnover in respect of assessment year 2004-05 as well. This decision was set aside by the Tribunal and against the order of the Tribunal, revenue had preferred ITA No.1076/2011. That appeal has been dismissed by this Court vide orders dated 16.11.2011 accepting the contention of the petitioner that the export turnover as defined in Section 10A of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is working); or c. if the High Court having jurisdiction has adopted a contrary interpretation but the Department has not accepted that judgment. Such a recovery is also contrary to the judgments of the Supreme Court in the case of Gopal Sugar v. ITO, 40 ITR 618 and Union of India v. Kamalakshi, AIR 1992 SC 711. 5. As per the aforesaid position in law, the demand made by the assessing officer on re-assessment in respect of assessment year 2003-04 itself becomes invalid and, therefore, no question of adjustment thereof arises. It is for this reason that we have observed that no purpose would be served in remitting the case back to the assessing officer. 6. We, thus, allow this writ petition and direct the assessing officer to release the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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