TMI Blog2006 (6) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... o the petitioner, the part of the communication contained in the intimation under section 143(1) regarding adjustment, is quashed. However, the respondents are at liberty to issue intimation prior to adjustment in terms of section 245 - writ petition is allowed - - - - - Dated:- 9-6-2006 - Judge(s) : BILAL NAZKI., G. CHANDRAIAH. JUDGMENT The judgment of the court was delivered by Bilal Nazki J.-This writ petition has been filed challenging the intimation dated January 27, 2006, issued by the first respondent under section 143(1) of the Income-tax Act, 1961 (hereinafter referred to as "the Act"), adjusting the amount of refund of Rs. 32,58,795 pertaining to the assessment year 2005-06 against the demand of Rs. 45,14,870. The fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2006, which was served on the petitioner-company on January 30, 2006. By virtue of this order, the assessee was entitled to a refund of Rs. 32,58,795 including interest of Rs. 1,55,180. Instead of refunding the money, the Assessing Officer adjusted this amount against the demand of Rs. 45,14,870 pertaining to the assessment year 2003-04. The petitioner is aggrieved by this adjustment. The main contention of learned counsel for the petitioner is that no prior intimation as required under section 245 of the Act was given before the amounts were adjusted. It is also contended that the amount found due for the assessment year 2003-04 could be paid on or before February 15, 2006, but the adjustment order was made on January 27, 2006, when, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proposed to be taken under this section." On a bare reading of this section, it becomes clear that the Assessing Officer, Deputy Commissioner (Appeals), Commissioner (Appeals), or Chief Commissioner or Commissioner may, in lieu of payment of the refund, set off the amount to be refunded or any part of that amount, against the sum, if any, remaining payable under the Act by the person to whom the refund is due. The only condition for exercise of such power is that it can be done after giving intimation to such person of the action proposed to be taken under this section. In the present case it has been contended in the counter affidavit that intimation was given. But the only intimation we find from the record is the intimation under se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 1st day of April, 1999, such intimation may be sent at any time up to the 31st day of March, 2002." In this case, at the footnote of the intimation under section 143(1), it has been inscribed, "Adjusted against demand (partly) for the assessment year 2003-04 at Rs. 45,14,870". By no stretch of imagination, can this intimation be treated as intimation under section 245 of the Act. It has been contended in the counter affidavit that the assessee did not communicate any reason to the Department as to why the adjustment as proposed in the intimation should not be made, but there is no such intimation of any proposed adjustment. It is only a notice under section 143(1) of the Act, in which it has been communicated that the amounts have al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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