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2016 (9) TMI 62 - KERALA HIGH COURT

2016 (9) TMI 62 - KERALA HIGH COURT - [2016] 386 ITR 148 - Set off of refunds against tax remaining payable - writ petition filed by the Kerala State Beverages (M & M) Corporation Ltd. challenging Ext.P7 and for a direction to the respondent to grant refund of the amount adjusted as per Ext.P2 letter - Held that:- True that, at the time when Ext.P1 order was passed on 30/01/2015, the refund order was not in existence and it came into effect only on 06/02/2015. However, merely for the reason that .....

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for a direction to the respondent to grant refund of the amount adjusted as per Ext.P2 letter. 2. The short facts involved in the writ petition would disclose that the petitioner, being an assessee before the 1st respondent under the Income Tax Act, 1961 (hereinafter referred to as 'the IT Act') filed returns for the assessment year 2012-13 admitting income of ₹ 80,94,44,360/-. The assessing officer had accepted the return. However, the matter was taken for scrutiny and assessment .....

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itioner preferred an appeal against Ext.P1 order and a stay petition was also filed. The stay petition was disposed by Ext.P7 order by giving effect to the adjustment and staying the outstanding demand of ₹ 105.79 Crores. Petitioner, by letter dated 20/02/2016, requested the Joint Commissioner of Income Tax to refund an amount of ₹ 223.57 Crores due to them over a period of time. It is stated that they have no liability in view of the orders of the Commissioner of Income Tax (Appeals .....

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ximum that can be levied is only 15% and therefore, when the petitioner had made a request for such adjustment, it ought to have been permitted. 4. A statement is filed by the learned Standing Counsel on behalf of the respondents inter alia stating that the outstanding demand of ₹ 340.93 Crores arose on account of the disallowance of the petitioner's claim for deduction of surcharge on sales tax and turnover tax. The refunds in respect of the respective assessment years have arisen on .....

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ly sustain a claim for payment of the amount. 5. Petitioner had filed a reply stating that, it was on receipt of Ext.P2 order by which the petitioner came to know about the refund orders. However, petitioner was served with copies of the orders dated 06/02/2015 wherein the 1st respondent had suo motu adjusted the money refundable to the petitioner against the dues in Ext.P1. Ext.P10 series are the orders passed. It is contended that Ext.P2 cannot be said to be a notice for the purpose of setting .....

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granted on condition of the adjustments already made. When the appellate authority had taken such a view in the matter, I do not think that there will be any justification on the part of this Court in setting aside the said order, as no infirmity can be pointed out to the said order. 8. Learned counsel for the petitioner, however, would submit that Ext.P10 series have never been served on the petitioner and it was preceded by Ext.P2 notice dated 3/2/2015. It might be correct to say that Ext.P2 o .....

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