M/S Ajanta Construction Company, F v. The Principal Commissioner Of Income Tax

IN THE HIGH COURT OF JUDICATURE AT PATNACivil Writ Jurisdiction Case No.9138 of 2017 ====================================================== M/s Ajanta Construction Company, F-175, P.C. Colony, Kankarbagh, Patnathrough its Partner Binod Kumar Choubey, Son of Sri Ram Choubey,Resident of F-175, P.C. Colony, Kankarbagh, P.S.- Kankarbagh, District-Patna. ... ... Petitioner/s Versus 1. The Principal Commissioner of Income Tax-2, Patna, Central RevenueBuilding, Birchand Patel Marg, Patna-1.Building, Birchand Patel Marg, Patna-1. 2. Commissioner of Income Tax-2, Central Revenue Building, Patna-1. 3. Deputy Commissioner of Income Tax, Circle-4, Lok Nayak Bhawan, Patna-1. ... ... Respondent/s ======================================================Appearance :For the Petitioner/s: Mr. Dinesh Choudhary, Adv.For the Respondent/s: Mr. Suman Kumar Mishra, Adv. Ms. Shilpi Kumari, Adv. ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE ANIL KUMAR UPADHYAYORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) Date : 27-11-2017 Petitioner has filed this writ petition and the onlyrelief claimed by the petitioner is that in view of an order passed bythe Commissioner of Income Tax, Appeal-2 Patna vide Annexure 2on 22.8.2016 and subsequently in view of the order of refund,Annexure 3 dated 7[th] of October, 2016, passed by the DeputyCommissioner of Income Tax, Circle 4, Patna, petitioner is entitledto refund of Rs.14,13,779/- plus interest and as the same is notbeing granted, this writ petition has been filed for refund of theamount. A supplementary counter affidavit has been filed byrespondent No.2 and from the supplementary counter we find thatwith regard to assessment years in question, various orders werepassed by the Income Tax Appellate Tribunal, Patna Bench videAnnexure A on 17.2.1998 and thereafter vide Annexure B on31.8.2000 wherein, based on certain criminal case institutedagainst the petitioner in the matter of claiming certain benefit onthe basis of fake T.D.R’s., criminal prosecution against thepetitioner has been lodged by the C.B.I. and it is stated in thesupplementary counter affidavit that the amount cannot berefunded until and unless the criminal cases are not concluded. Keeping in view the averments made in thesupplementary counter affidavit filed, now, in the facts andcircumstances that have come on record, we are not inclined toissue a mandamus commanding the respondents to refund theamount in pursuance to the order Annexure 3 dated 7[th] October,2016. On the contrary, we direct that on the petitioner filing acertified copy of this order along with relevant documents,including the supplementary counter affidavit filed by respondentNo.2, along with documents Annexures A and B, the DeputyCommissioner of Income Tax, Circle 4, Patna, the authority whichpassed the order Annexure 3, dated 7[th] of October, 2016 for refund, shall examine the matter, hear the petitioner and decide thequestion of refund afresh in accordance with law within areasonable period, preferably within two months. With the aforesaid this application stands disposed of. (Rajendra Menon, CJ) ( Anil Kumar Upadhyay, J) K.C.Jha/- AFR/NAFRNAFRCAV DATEN/AUploading Date9.12.2017Transmission Date