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TMI Blog2014 (10) TMI 746X X X X Extracts X X X X X X X X Extracts X X X X ..... pondents : Ms Suruchi Aggarwal. JUDGMENT Badar Durrez Ahmed, J (Oral) 1. In this writ petition the following prayers have been made:- "a) A Writ of Certiorari or Writ, order or direction in the nature of Certiorari, or any other appropriate Writ, order of direction under Article 226/227 of the Constitution of India quashing adjustment of refund of Rs. 89,16,28,190/- pertaining to AY 2013-14 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew of this development, prayer (b) does not survive. He will take his independent remedy under Section 264 of the said Act. With regard to prayer (a), he submits that the adjustment was made without giving an opportunity to the assessee as is the requirement under Section 245 of the said Act as interpreted by this court in Glaxo Smith Kline Asia (P.) Ltd v. CIT: 290 ITR 35 (Del). The same sentime ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... due informing him of the action proposed to be taken under this section. 26. xxxx xxxx xxxx xxxx 27. As already noticed, this discretionary power has to be exercised after giving an opportunity to the assessee of being heard preceded by an intimation to the assessee in writing of the action proposed to be taken under section 245. A further implicit requirement is that the revenue will have to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne of the paragraphs of the counter affidavit, the respondents have stated as under: "Accordingly, it was again reiterated that the provisions of section 245 of the I.T. Act, 1961 must be followed and written intimation must be sent to the assessees before adjusting refund of the outstanding demand and any lapse in this regard shall be viewed seriously. The CCsIT/DGsIT/CsIT were direct to ensure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is evident from the record of the case that on the same date on which the intimation was issued the adjustment was made simultaneously. This is contrary to the spirit of the provisions of Section 245 as interpreted by this court in the above decisions inasmuch as no opportunity of hearing was given to the assessee before the adjustment was made. Therefore, on this ground alone the adjustment or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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