TMI Blog2022 (2) TMI 881X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 245 of the Act without disposing of and taking any decision on application of the petitioner under Section 220 (6) of the Act and acting contrary to the aforesaid office memorandum of CBDT dated 29th February, 2016 and 31st July, 2017 is bad in law. Accordingly the Assessing officer concerned is directed to refund the amount adjusted in excess of 20% of the demand arising out of the assessment order relating to assessment year 2015-16 from the refundable amount from the assessment relating to assessment year 2008-09 within four weeks from the date of communication of this order. - WPO 113 of 2018 - - - Dated:- 15-2-2022 - THE HON BLE JUSTICE MD. NIZAMUDDIN Mr. Somak Basu, Adv. for the petitioner Mr. S.N. Dutta, Adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be recovered at all, is legal and valid ? (ii) Whether impugned action of the respondent assessing officer making adjustment of the whole amount of demand relating to assessment year 2015-16 under Section 245 of the Act and which is admittedly in excess of 20% of the demand in question, from the refund of assessment year 2008-09, during the pendency of the appeal against the assessment order for the assessment year 2015-16, without disposing and passing any formal order on the application of the assessee petitioner under Section 220 (6) of the Act, is contrary to and inconsistent with the office memorandum F. No. 404/72/93-ITCC dated 29th February, 2016 and the office memorandum F. No. 404/72/93-ITCC dated 31st July, 2017 issued by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act which is an admitted fact. It also appears from record that during pendency of appeal the amount which has been adjusted for the assessment year 2015-16 from the refund of assessment year 2008-09 is more than 20% of the demand raised in the assessment order relating to assessment year 2015-16. Petitioner submits that such action of the respondent assessing officer in making adjustment in question without disposing its objection to the intimation under Section 245 of the Act and without disposing its application under Section 220 (6) of the Act is bad and not sustainable in the eye of law. In support of his contention learned advocate appearing for the petitioner relies on a decision of the Division Bench of Delhi High Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 521 (Delhi). Petitioner has also relied on an unreported decision of Delhi High Court dated 3rd August, 2021 in the case of Eko India Financial Services Private Limited vs. Assistant Commissioner of Income Tax Circle 7(1) Anr. in W.P. (C) 5819/2021 and particularly on paragraphs 10,11,12 and 13 which are quoted hereinbelow : 10. Having heard learned counsel for the parties, this Court is of the view that the Government is bound to follow the rules and standards they themselves had set on pain of their action being invalidated. [See : Amrit Singh Ahluwalia vs. State of Punjab Ors. 1975 (3) SCR 82 and Ramana Dayaram Shetty vs. International Airport Authority of India Ors. 1979 SCR (3) 1014]. 11. This Court is also of the vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied on another unreported decision of Delhi High Court in the case of Skyline Engineering Contracts (India) Private Limited vs. Deputy Commissioner of Income Tax Circle 22(2), Delhi Ors. in W.P. ( C) 6172/2021 CM Appl. 19561/2021 dated 23rd August, 2021 and particularly paragraphs 10, 11 and 12 which are quoted hereinbelow : 10. This Court is also of the view that the office memorandum dated 29th February, 2016 read with office memorandum dated 25th August, 2017 stipulate that the Assessing Officer shall normally grant stay of demand till disposal of the first appeal on payment of 20% of the disputed demand. In the event, the Assessing Officer is of the view that the payment of a lump sum amount higher than 20% is warranted, then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e aforesaid judgments cited by the petitioner that affording of opportunity of hearing to the assessee/petitioner before making any adjustment under Section 245 of the Act is mandatory and just intimation of proposal to adjustment is a mere idle formality. More so when the petitioner has already filed an objection against the intimation proposing adjustment of refund from the due of another assessment year, respondent assessing officer was bound to dispose of the same and to take a decision on the said objection. Mr. Dutta could not satisfy this Court from any record that any formal order was passed by the assessing officer on the objection to the aforesaid intimation under Section 245 of the Act and specifically recording regarding his sat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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