9911796707
TMI Blog2000 (3) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... to get the refund due. Against the balance demands payable for the assessment years 1991-92 and 1992-93, respondent No. 2 had set off refunds. An intimation was sent to the petitioners by respondent No. 2. On receipt of the intimation, the petitioner raised objection to the set off by respondent No. 2, specially pointed out to respondent No. 2 that the refund due to the assessee cannot be adjusted against the amount seized from the residence of Shri A. K. Chhajer unilaterally but the request of the petitioner/respondent was rejected and the full amount of refund due has not been refunded to the petitioner-respondent. Then the petitioner/respondent filed this writ petition before this court. Learned single judge discussed the views expressed by various High Courts and has taken the view that no adjustment can be made of the refund due to the assessee, against any tax arrears, without intimation to the assessee as required under section 245 of the Act. Learned counsel for the appellants, Shri Roy Chowdhury submits that though the intimation was not given before setting off the amount due against the assessee but after setting off the amount against tax arrears the intimation was g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of Mr. A. K. Chhajer, at Delhi, on April 15, 1994, in respect of the amount seized from the residence of Mr. A. K. Chhajer should be taxed in the hands of A. K. Chhajer but that has been wrongly taxed and the tax liability adjusted against the refund due in the assessment year 1991-92. No intimation or an opportunity was given to the assessee how the amount due can be adjusted against tax liability of Shri A. K. Chhajer. Before going into that controversy, we would like to consider whether the amount due can be set off against tax liability without prior intimation as required under section 245 of the Act, The same issue has been considered by various High Courts wherein the view has been taken that before setting off any amount due to the assessee, the prior intimation is necessary. In A. N. Shaikh v. Suresh B. Jain [1987] 165 ITR 86, the Bombay High Court has taken the view that the intimation, which is required under section 245 of the Act, is a prior intimation of the proposed action for adjustment. In the case of Suresh B. Jain v. A. N. Shaikh, Sixteenth ITO [1987] 165 ITR 151, the Bombay High Court observed at page 153 as under : "A mere perusal of this section makes i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on est in the eye of law. Such illegal setting off of the amount refundable against the outstanding demand is, therefore, to be ignored. Against the decision of the Delhi High Court, a S. L. P. was filed in the Supreme Court and the Supreme Court has dismissed the S. L. P. which is reported in CIT v. Vijay Kumar Bhati. The same view has been taken by the Punjab and Haryana High Court in State Bank of Patiala v. CIT [1999] 239 ITR 421. In Shiv Narain Shivhare v. Asst. CIT (Investigation) [1996] 222 ITR 620, the Madhya Pradesh High Court has observed at page 622 as under : "Therefore, the so-called order passed on June 9, 1992, appears to be without jurisdiction as no notice was given to the petitioner-assessee nor Shri Jain could point out that any notice was given before proceedings were taken up. This is in breach of principles of natural justice as no notice as required under section 154(3) as well as under section 245 of the Act were served on the petitioner. Hence, the respondents are directed to refund the amount due forthwith. If they want to take recourse to set off, it is open to them to proceed in accordance with law." The requirement under section 245 is denied, then s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht of any party is affected, hearing should be given to the party before any such order is passed. He placed reliance on the decision of the apex court in Institute of Chartered Accountants of India v. L. K. Ratna [1987] 164 ITR 1 ; [1986] 4 SCC 537 and United Planters Association of Southern India v. K. G. Sangameswaran [1997] 90 FJR 454 ; [1997] 4 SCC 741. In the case of Institute of Chartered Accountants of India v. L. K. Ratna [1987] 164 ITR 1 ; [1986] 4 SCC 537 at page 551, their Lordships have observed as under : "It is next pointed out on behalf of the appellant that while regulation 15 requires the Council, when it proceeds to act under section 21(4), to furnish to the member a copy of the report of the Disciplinary Committee, no such requirement is incorporated in regulation 14 which prescribes what the Council will do when it receives the report of the Disciplinary Committee. That, it is said, envisages that the member has no right to make a representation before the Council against the report of the Disciplinary Committee. The contention can be disposed of shortly. There is nothing in regulation 14 which excludes the operation of the principle of natural justice entitl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt of refund due. In the light of the above observations, we found no infirmity in the impugned order of the learned single judge dated January (?) 28, 1999 (see [1999] 238 ITR 820). In the result, the appeal is dismissed. Let a xerox copy of this judgment, duly countersigned by the Assistant Registrar of this court be given to the parties upon their undertaking to apply for and obtain. certified copy of the same upon usual undertaking. G. A. No. 2150 of 2000--(July 7, 2000). Heard learned counsel on this review application. The applicant prays that the judgment dated March 14, 2000, be recalled, as written submission filed after delivery of the judgment was not considered, In the application, the applicants came with the prayer that written submissions should be considered, though they could not file the written submissions, before the judgment was delivered. The written submissions filed after the judgment should be considered and review the judgment dated March 14, 2000. After hearing both the sides and on perusal of our record, the record reveals that the matter was listed on October 13, 1999, December 10, 1999 and on January 12, 2000, for hearing and the matter was heard i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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