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R.G. GURJAR Versus INCOME TAX OFFICER

Net refund after adjustment of any outstanding demands along with interest - rectification of mistake - Held that:- It is difficult to understand the adamant approach adopted by the respondent in not giving effect to the order passed by the Commissioner (Appeals) when he is duly empowered by the provisions of section 245 of the Act to adjust the refund against other pending dues. In fact, the petitioner has implored the respondent to adjust the refund amount against other dues, but to give effec .....

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pondent in the affidavit-in-reply and as urged before this court is thoroughly misconceived and contrary to the provisions of law. Under the circumstances, the petition deserves to be allowed by issuing the directions as prayed for therein. - For the foregoing reasons, the petition succeeds and is, accordingly, allowed. The respondent is directed to forthwith give effect to the order dated 5.9.2013 passed by the Commissioner (Appeals) and grant consequential refund along with interest, after .....

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M Parikh, Advocate ORAL JUDGMENT (PER : MS. HARSHA DEVANI) 1. Rule. Mr. K.M. Parikh, learned senior standing counsel, waives service of notice of rule on behalf of the respondent. Having regard to the controversy involved in the present case, the matter was taken up for final hearing yesterday, that is, on 26th April, 2016. 2. By this petition under Article 226 of the Constitution of India, the petitioner seeks a direction to the respondent Income tax .....

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passed under section 143(3) read with section 147 of the Income Tax Act, 1961 (hereinafter referred to as the Act ) on a total income of ₹ 35,85,700/-. The petitioner carried the matter in appeal before the Commissioner of Income Tax (Appeals) who, vide order dated 19.11.2008 granted relief by reducing the addition to the extent of ₹ 10,01,019/-. Thereafter, the petitioner moved a rectification application before the Commissioner (Appeals) on 30.12.2008 to modify the above order on .....

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ioner withdrew the appeal preferred by it against the order dated 19.11.2008 passed by the Commissioner (Appeals). The petitioner, thereafter, requested the respondent to give effect to the order dated 5.9.2013 passed by the Commissioner (Appeals) on the rectification application. The request was reiterated by forwarding several letters in this regard. However, since the respondent did not pass any order giving effect to the order of the Commissioner (Appeals), the petitioner has approached this .....

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t that the respondent was required to give effect to the appellate order within a period of one month from the date of such order. It was pointed out that against the order dated 5.9.2013 passed by the Commissioner (Appeals), the department has preferred an appeal before the Tribunal; however, no stay has been granted by the Tribunal and hence, the respondent is duty bound to comply with the order passed by the Commissioner (Appeals) and give effect to it. It was, accordingly, urged that the pet .....

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and conclusive and that the petitioner cannot insist upon the revenue to immediately give effect to the order dated 5.9.2013. It is further the case of the respondent that against the order passed by the Commissioner (Appeals), the petitioner had availed of two remedies; one by filing an appeal before the Tribunal being ITA No.3170/Ahd/2010 and another by filing the rectification application under section 154 of the Act. According to the respondent, since the Tribunal has dismissed the appeal b .....

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ent, in view of the fact that in the case of the petitioner, a demand of ₹ 5,79,824/- is to arise and a demand of ₹ 2,03,007/- is outstanding for assessment year 2006-07, it cannot be said that the petitioner is entitled to refund of the amount as claimed in the petition. It is also the case of the respondent that the order dated 5.9.2013 has not attained finality in the eye of law as the department s appeal against the said order is pending before the Tribunal and that in view of th .....

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8, the Commissioner (Appeals) partly allowed the appeal preferred by the petitioner by restricting the addition made by the Assessing Officer under section 40(a)(ia) to ₹ 18,60,931/- and deleting the balance amount. On 30.12.2008, the petitioner moved a rectification application before the Commissioner (Appeals) to rectify the earlier order passed by him. Several reminders were forwarded to the Commissioner (Appeals) for passing an order on the rectification application; however, there was .....

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the TDS deducted was deposited with the Government before due date of filing return under section 139(1) of the Act. In view of the fact that the grievance voiced by the petitioner in the appeal preferred before the Tribunal no longer survived, the petitioner sought permission to withdraw the appeal and, accordingly, by an order dated 10.1.2014 the Tribunal dismissed the appeal as withdrawn. It appears that against the order dated 5.9.2013 passed by the Commissioner (Appeals), the de .....

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Section 154(4) of the Act provides that a rectification has to be effected by an order in writing by the authority concerned. Not only that, the authority concerned has to give effect to the order by calculating afresh the amount of tax payable as per the rectified order and the amount of tax paid, if any. Sub-section (5) thereof provides that where any such amendment has the effect of reducing the assessment or otherwise reducing the liability of the assessee or the deductor, the Assessing Off .....

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de any adjustment after prior intimation to the petitioner under section 245 of the Act. The reason for noncompliance with the mandate of the provisions of sub-section (5) of section 154 of the Act is nothing but an adamant attitude of the respondent, which is clearly reflected from the contentions raised in the affidavit in reply wherein it has been contended that since the petitioner preferred an appeal before the Tribunal against the order dated 19.11.2008 passed by the Commissioner (Appeals) .....

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ion, whereas on the other hand, it is stated that since the rectification order dated 5.9.2013 is subject-matter of challenge before the Tribunal, it cannot be given effect to at this stage. Essentially the stand of the respondent is that one way or the other, the order dated 5.9.2013 passed by the Commissioner (Appeals) is not required to be given effect to. 10. In the opinion of this court, while not giving effect to the order dated 5.9.2013 passed by the Commissioner (Appeals), th .....

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etent jurisdiction. Under the circumstances, the respondent is statutorily bound to give effect to the said order. 11. Moreover, it is difficult to understand the adamant approach adopted by the respondent in not giving effect to the order passed by the Commissioner (Appeals) when he is duly empowered by the provisions of section 245 of the Act to adjust the refund against other pending dues. In fact, the petitioner has implored the respondent to adjust the refund amount against other .....

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