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2015 (11) TMI 546

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..... act of the respondent of not refunding the amount when due and adjusting the same against the demands which have accrued much later in point of time. For the foregoing reasons, the petition succeeds and is, accordingly, allowed. The respondent is directed to forthwith, within a period of fifteen days from the date of receipt of this order, refund the entire amount of ₹ 17,08,78,351/- to the petitioner together with interest under section 244A of the Act in accordance with law, without making any adjustment in relation to any demand which arises after the date of this order. - Decided in favour of assessee. - SPECIAL CIVIL APPLICATION NO. 13761 of 2015 - - - Dated:- 5-11-2015 - MS. HARSHA DEVANI AND MR. A.G.URAIZEE, JJ. FOR .....

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..... f Income Tax (Appeals) allowing the appeals against the assessment orders and the assessment order for assessment year 2012-13 :- Sr. No. Assessment Year Refund Due (Rs.) Date of Appellate order of the CIT (A) Period for which refund is due 1. 2007-08 2,20,22,351 29.12.2010 4 years 8 months 2. 2008-09 27,22,485 28.03.2013 2 years 5 months 3. 2009-10 9,00,80,173 .....

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..... anted till 15.6.2015 or even later but on the contrary, the petitioner received two notices under section 154 of the Act dated 31.7.2015 for assessment years 2007-08 and 2008-09 and two notices under section 271(1)(c) dated 27.7.2015 for assessment years 2010-11 and 2011-12. The petitioner gave its reply to all the notices and received the replies from the Assessing Officer stating that the penalty proceedings could not be kept in abeyance as requested by the petitioner. It is the case of the petitioner that the entire effort of the Assessing Officer by issuing the notices under sections 154 and 271(1)(c) of the Act is to raise a demand and defeat the payment of refund. It is in these circumstances that the petitioner has filed the present .....

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..... issued only with the oblique view of raising a demand to defeat the rightful claim of the petitioner. 5. Opposing the petition, Mr. Pranav Desai, learned senior standing counsel for the respondent invited the attention of the court to the affidavit-in-reply filed by the respondent to point out that while it is true that refund of an amount of ₹ 17,08,78,351/- is due to the assessee, various demands are likely to arise in view of the proceedings under section 271(1) (c) of the Act as well as under section 143(3) read with section 115JB in relation to subsequent assessment years. It was submitted that, therefore, a demand of ₹ 12,56,90,319/- is likely to arise in relation to assessment years 2010-11, 2011- 12 and 2013-14 which .....

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..... r the respondent is not in a position to point out any such provision which permits the respondent to retain the amount of refund due to the petitioner under the provisions of the Act. 8. A perusal of the provisions of section 240 of the Act reveals that when refund of any amount becomes due to the assessee, the Assessing Officer shall, except as otherwise provided in the Act, refund the amount to the assessee without his having to make any claim in that behalf. Therefore, it is the duty of the Assessing Officer, except where he exercises power under section 245, to set off refunds against tax remaining payable, to refund such amount to the assessee without his having to make any claim in that behalf. In the present case section 245 of t .....

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..... sessee against likely future demands that may be raised, is without any authority of law. 10. Under the circumstances, petitioner is entitled to a direction to the respondent to forthwith refund to it the entire amount of refund without any adjustment being made against such amount, inasmuch as, the respondent cannot be permitted to take advantage of his own wrong in not refunding the amount due and payable to the petitioner at the appropriate time in terms of the provisions of the Act, and then seek to set off the refund against a demand subsequently raised, otherwise it would amount to putting a premium over the wrong act of the respondent of not refunding the amount when due and adjusting the same against the demands which have accrue .....

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