Refund was adjusted without following the requirement of section 245 of the Act . The assessee filed writ against adjustment of refund . Allowing the petition the Court held that although the respondents purport to contend that proper procedure had been followed, record does not bear that there had been any communication made to the petitioner as to its submissions being not acceptable before or at the time of making the adjustment. Decisions in the cases of A. N. Shaikh v. Suresh Jian (1987 ) 165 ITR 86 ( Bom) (HC) Hindustan Unilever Ltd v. Dy.CIT (.2015 ) 377 ITR 281 ( Bom) (HC) and Milestone Real Estate Fund v. ACIT ( 2019) 415 ITR 467 (Bom) (HC) relied on, on behalf of the petitioner have not been met with by the respondents nor it is the case of the respondents that any other course could be adopted for adjustment of refund. There is stark absence of material showing compliance of requirements viz: application of mind to contentions on behalf of the petitioner, reasoned order and its communication to the assessee. The facts and circumstances lend lot of substance to submissions advanced on behalf of the petitioner that there is absence of compliance of requirements under section 245 of the Act, coupled with observations of high court in the decisions relied upon on behalf of the petitioners . writ petition was allowed and the respondents directed to refund the amount to the petitioner for AY 2019-20 as determined under intimation under section 143 (1) of the Act dated 17th January, 2021 with interest thereon, as per law, within a period of four weeks from the date of receipt of this order. (AY. 2019 -20 )(WPNO. 732 of 2021 dt 6-4 -2021 )
Tata Communication Ltd. v. UOI (2021)435 ITR 632/ 320 CTR 686/ 281 Taxman 162 / 201 DTR 188 (Bom) (HC),www.itatonline.org
S. 245 : Refund- Set off of refunds against tax remaining payable –
The Dept has not complied with the requirements of s. 245 of the Act- It is difficult to appreciate the stand of the Dept that the order passed by the high court would not cover/operate over the matters and orders passed by the ITAT, Union of India being not a party to the matter- Such a justification from and the approach of, the authorities is difficult to be approved of which is not in fitness of stature, especially of the state department, which is supposed to act like a model litigant- Directed to refund the amount with interest with in four weeks . [ S. 220 (6), Art ,226 ]