M/S Srishti Constructions v. Additional Commissioner Of Income Tax & Another

IN THE HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARH. C.W.P. No.4213 of 2010 (O&M)Date of decision: 7.9.2010 M/s Srishti Constructions. -----Petitioner. Vs. Additional Commissioner of Income Tax & another. -----Respondents CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOELHON'BLE MR. JUSTICE AJAY KUMAR MITTAL Present:-Mr. Viney Puri, Advocatefor the petitioner.for the petitioner. Mr. Vivek Sethi, Advocatefor the respondents. --- ADARSH KUMAR GOEL, J. 1. This petition seeks quashing of foot note to order dated 23.2.2010, Annexure P-12, to the following effect:- “Note: Demand of Rs.8,65,970/- created under section143(1) of original return taken to remissionaccount No.......Demand of Rs.8,65,970/- created under section143(1) of original return taken to remissionaccount No....... Refund of Rs.17,78,750/- adjusted againstdemand of Rs.16,71,187/- created under section143(3) for assessment year 2007-08. Balancerefundable: 1,07,563/-.”Refund of Rs.17,78,750/- adjusted againstdemand of Rs.16,71,187/- created under section143(3) for assessment year 2007-08. Balancerefundable: 1,07,563/-.” 2. Case of the petitioners is that as a result ofassessment for the assessment year 2008-09, refund becamedue but instead of giving the refund as required, the amount wasadjusted towards demand for the assessment year 2007-08.Appeal against the order of assessment for the year 2007-08 waspending and stay had been granted to the extent of 50% of thedemand. Moreover, for passing an order of adjustment underSection 245 of the Income Tax Act, 1961 (for short, “the Act”),intimation was required to be given to the petitioner which was notdone. 3. In reply to the notice issued by this Court, therespondents have not been able to show why the adjustment wasmade in respect of the amount covered by order of stay andwithout any intimation, as required under Section 245 of the Act.In absence thereof, the petition has to be allowed. 4.Accordingly, we allow this petition and quash the footnote to order dated 23.2.2010, Annexure P-12, with liberty to therespondents to pass a fresh order in accordance with law. (ADARSH KUMAR GOEL) JUDGE September 07, 2010ashwani ( AJAY KUMAR MITTAL ) JUDGE