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TMI Blog2023 (2) TMI 529X X X X Extracts X X X X X X X X Extracts X X X X ..... e date of 28.04.2015 he is not to be amplified in as much as the endorsement of the authority concerned is indicative of the same being of 30.04.2015. There has been an application for rectification of the Assessment Order on 31.03.2015 that may not be treated as an application for the purpose of exercise of the powers given under the circular. The petitioner s express request to the respondent to keep the demand in abeyance till the time the appeal of the assessment year 2012-13 is disposed of ought to have been considered. As noticed that the adjustments which have taken place over the period of time by disregarding such a request has adjusted the refund to the tune of nearly 65%. When, in fact, 20% of the amount would come to Rs.4,10,67,754/- rounding the same that of to Rs.4.11 Crore, the remaining amount could not have been continued to be adjusted against the demand which is yet to be adjudicated by the CIT (Appeals). Accordingly, this petition preferred by the petitioner deserves to be allowed quashing and setting aside the order whereby the respondent refused to refund the excess amount adjusted beyond 20% of the demand raised by the respondent for the assessment year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erest raised by the respondent and the amount of Rs.30,43,48,695/- have been adjusted by the respondent against the refunds receivable for various years, which constitutes 65.43% of the total demand raised. Following tabular details of the refund and adjustment made would be necessary to be reproduced: Assessment Year Refund Adjusted (Rs.) Date of Adjustment 2013-14 3,71,07,990/- 04/01/2017 2014-15 4,61,39,761/- 17/03/2017 2019-20 80,40,871/- 20/03/2020 2020-21 4,30,60,073/- 11/11/2021 1.5 The petitioner filed an application with the respondent as well as the Commissioner of Income Tax requesting to release the refund of INR 9.32 Crore (rounded of) i.e. the amount adjusted beyond 20% of the demand raised by the respondent in accordance with the Office Memorandum issued by the Central Board of Direct Taxes ( the CBDT hereinafter) dated 31.07.2017 which prescribes the payment of 20% of the disputed amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . CIT/CIT, who after considering all relevant facts shall decide the quantum/proportion of demand to be paid by the assessee as hump sum payment for granting a stay of the balance demand.. (C) In a case where stay of demand is granted by the assessing officer on payment of 15% of the disputed demand and the assessee is still aggrieved, he may approach the jurisdictional administrative Pr. CIT/CIT for a review of the decision of the assessing officer. (D) The assessing officer shall dispose of a stay petition within 2 weeks of filing of the petition. If a reference has been made to Pr. CIT/CIT under para 4 (B) above or a review petition has been filed by the assessee under para 4 () above, the same shall also be disposed of by the Pr. CIT/CIT within 2 weeks of the assessing office making such reference or the assessee filing such review, as the case may be. 1.9 The petitioner, therefore, is before this Court by a specific grievance that the adjustment, which has been made against the refund to be granted as high as 65% of the demand raised, which is more than 20% prescribed by the said instructions dated 31.07.2017, Sub-section (1) of Section 119 of the IT Act prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reliance on Office Memorandum dated 29.02.2016 and 31.07.2017. This Office Memorandum would go to show that they are not applicable in case of the petitioner. It prescribes that upon a stay application being filed, the stated procedure is required to be followed. In the instant case, no stay application has been filed before the Assessing Officer or before the Jurisdictional Commissioner. Therefore, they would not have any applicability. 2.3 Furthermore, as per Clause (2) of the Memorandum dated 29.02.2016, a demand would be stayed only if there are valid reasons for doing so and the mere filing of the appeal against the Assessment Order will not be sufficient reason to stay the recovery of demand. The Assessing Officer is required to undertake the procedure only upon an application being made and as a pre-condition for stay ordinarily 20% of the demand is required to be paid. It is also open for the Assessing Officer to ask for the amount higher then the 20% if so warranted. The assessee since has not made any application for the stay, the refund due for the subsequent years have been adjusted through the system itself. There is no overt act on the part of the Assessing Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 28.04.2015 when readiness was shown for filing the appeal, however, no appeal was filed till that date and hence, such an application cannot be treated as an application under the circulars which requires specific application pending the appeal. 5. We are in complete disagreement with such submissions as we could notice from that very application that the inward stamp is of 30.04.2015 and the appeal also is pending from 30.04.2015. Assuming that such an application was preferred on 28.04.2015 the fact remains that within two days the appeal has been preferred i.e. on 30.04.2015 and the authority which is required to apply its mind and either accede to the request or reject the same shall need to take a holistic view and this application which was preferred on the very day of 30.04.2015 could not have been overlooked. 6. Apt would to summarize of the adjustment made by the respondent as mentioned a para 1.4 above. 7. In all the amount of Rs.13,43,48,695/- has been adjusted by the respondent against the refunds receivable for various years. It constitutes 65.43% of the total demand raised by the respondent for the assessment year 2012-13. 8. Relevant will be to refer to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion resulting in the disputed demand is such that payment of a lump sum amount lower than 15% is warranted (e.f. in a case where addition on the same issue has been deleted by appellate authorities in earlier years or the decision of the Supreme Court or jurisdictional High Court is in favour of the assessee, etc.), the assessing officer shall refer the matter to the administrative Pr.CIT/CIT, who after considering all relevant facts shall decide the quantum/proportion of demand to be paid by the asessee as lump sum payment for granting a stay of the balance demand. (C) In a case where stay of demand is granted by the assessing officer on payment of 15% of the disputed demand and the assessee is still aggrieved, he may approach the jurisdictional administrative Pr.CIT/CIT for a review of the decision of the assessing officer. (D) The assessing officer shall dispose of a stay petition within 2 weeks of filing of the petition. If a reference has been made to Pr.CIT/CIT under para 4 (B) above or a review petition has beenfiled by the assessee under para 4(C) above, the same shall also be disposed of by the Pr.CIT/CIT within 2 weeks of the assessing officer making such ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e disputed amount since was found to be on a lower side, the same has been revised to 20% of the disputed amount. All references to 15% stood modified to 20% of the disputed amount. 8.5 It is quite obvious from these guidelines that they are issued by the Board for the purpose of all Assessing Officers, who are to act upon the same quickly and to abide by the same observing its spirit. It is obviously to be applied on an application moved by the assessee in a pending appeal. 8.6 In the opinion of the Assessing Officer, if 15% payment of a lump some amount is on a lower side, it can refer the matter to the Administrative Principal CIT or CIT, who can then decide the quantum of proportion of demand to be paid. 9. Noticing the fact that the appeal, which has been preferred on 30.04.2015 by the petitioner is still pending, begging the attention of the authority for final adjudication after seven years, what is relevant for the purpose of this Court to decide is that the adjustment of refund which otherwise were due to be given to the petitioner had been adjusted over the period of time making it almost 65% of the demand which is being assessed in the appeal of the Assessment Y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Court at the time of filing of affidavit-in-reply, the instructions given to the counsel is to the effect that there was a complete absence of any application when in fact at the time of filing of the appeal, the application has been made and assuming the application was prior in point of time, the gap is only of two days and that kind of a hyper technicality would hardly be expected when otherwise the assessee has fulfilled all other requirements for him to be entitled to the benefit of these circulars. In fact, even the date of 28.04.2015 he is not to be amplified in as much as the endorsement of the authority concerned is indicative of the same being of 30.04.2015. There has been an application for rectification of the Assessment Order on 31.03.2015 that may not be treated as an application for the purpose of exercise of the powers given under the circular. The petitioner s express request to the respondent to keep the demand in abeyance till the time the appeal of the assessment year 2012-13 is disposed of ought to have been considered. 13. We have noticed that the adjustments which have taken place over the period of time by disregarding such a request has adjusted the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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