9911796707
TMI Blog2012 (12) TMI 904X X X X Extracts X X X X X X X X Extracts X X X X ..... r filed its income tax return declaring a loss of Rs.84,60,129/- for the year 2005-06. The assessment of the company under Section 143(3) was completed on 19.12.2008. On 24.02.2010, the revenue issued notice for reopening of assessment of the petitioner's income. To the reasons cited for reopening the assessment on 17.08.2010, the petitioner filed its objections, which were dismissed by the respondent. In December 2010, the petitioner filed WP(C) 8130/2010 seeking quashing of the notice issued under Section 148. This court, by order dated 24.12.2010, disposed of the said petition, directing that: "...it is directed that the assessment proceedings initiated on the basis of Section 148 shall continue and be finalized, but shall not be given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o additional information had been used for the decision. It is argued, more importantly, that enforcement of the demand is in violation of the order passed by this Court on 24.12.2010, which stayed the enforcement of the demand from the re-assessment proceedings without leave from the court. The Petitioner relies on the decision reported as Maruti Suzuki India Limited v Deputy Commissioner of Income Tax, (2012) 246 CTR (Del) 176, where it was held that the expression „recovery‟ would include adjustments made. Thus an order directing maintenance of status quo operated as a bar to the revenue collecting amounts due by adjustment under Section 245. 6. It is also contended that the term 'to give effect to an assessment or reassessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dues from the petitioner. The revenue, in respect of a later period, sought to adjust the amounts due to the writ petitioner, by way of refund. The revenue contends that the adjustment was only towards dues arising out of reassessment proceedings, which it is legitimately entitled to do. This contention is covered squarely by the case of Maruti Suzuki India Limited v Deputy Commissioner of Income Tax, (2012) 246 CTR (Del) 176. The Division Bench of this High Court had held that the term „recovery‟ would include any adjustments made, and is not merely limited to the adoption of coercive measures to realize the amounts due by the assessee. Thus an order directing maintenance of status quo would operate as a bar to the revenue co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed, it would be improper and inappropriate on the part of the Revenue to recover the demand by way of adjustment. In case of doubt or ambiguity, an application for clarification or vacation/modification of stay to allow adjustment can be, and should be filed. But no attempt should be made and it should not appear that the Revenue has tried to over-reach and circumvent the stay order. Obedience and compliance with the stay order in letter and spirit is mandatory. A stay order passed by an appellate/higher authority must be respected. No deviancy or breach should be made." The above extract would clarify that the revenue's contention is insubstantial. Therefore, the impugned adjustment sought to be made by it, was contrary to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Act by the person to whom the refund is due." That this power is discretionary and not mandatory is indicated by the word "may". Secondly, the set off is in lieu of payment of refund. Thirdly, before invoking the power, the officer is expected to give an intimation in writing to the assessee to whom the refund is due informing him of the action proposed to be taken under this section. Further, it was held that: "28. As already noticed, this discretionary power has to be exercised after giving an opportunity to the assessed of being heard preceded by an intimation to the assessed in writing of the action proposed to be taken under Section 245. A further implicit requirement is that the Revenue will have to be satisfied that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
