Giving of prior intimation under section 245 (of Income Tax Act, 1961) is mandatory.

1. By this petition, the petitioner challen,es the action of respondent No.2 of adjustin, the refund of Rs.2,22,89,942/- for the assessment year 2008-09 arisin, as consequence and effect of the order of the Income Tax Appellate Tribunal (‘The Tribunal’) a,ainst the alle,ed outstandin, demands for assessment years 2014-15 and 2015-16.

2. The case set up is that an amount of Rs.61,64,649/- as refund for assessment year 2008-09 came to be adjusted for assessment year 2014-15 which came to the knowled,e of the petitioner on November 17, 2021, when the petitioner downloaded the Form 26AS for the assessment year 2014-15, where ‘Part C’ of Form No.26AS provided details of tax paid (other than TDS or TCS).

3. The petitioner’s case further is that an amount of Rs.1,61,25,293/- came to be adjusted ille,ally by the respondent No.2 from the refund determined in favour of the petitioner upon ,ivin, effect to the tribunal’s order for assessment year 2008-09 a,ainst the alle,ed outstandin, demand for the assessment year 2015-16. Knowled,e of this ille,al adjustment was also stated to have been acquired by the petitioner on November 17, 2021 when the petitioner downloaded the Form No.26AS.

4. Learned counsel for the petitioner ur,ed that the action of respondent No.2 in makin, adjustments of refund due was ille,al inasmuch as no intimation was ,iven to the petitioner as was the requirement in terms of section 245 (of Income Tax Act, 1961) (‘the Act, 1961’).

5. Reliance was placed upon the jud,ments of this Court in the case of A.N. Shaikh, Sixteen Income-Tax Offcer Vs. Suresh B. Jain and Hindustan Unilever Ltd. Vs. Deputy Commissioner of Income-Tax and Others 2 and a jud,ment of Delhi Hi,h Court in the case of Maruti Suzuki India Limited Vs. Deputy Commissioner of Income Tax & Ors.

6. Reply affdavit has been fled in which a ,eneral statement has been made that the requirements of section 245 (of Income Tax Act, 1961) have been complied with. However, the reply affdavit does not specifcally state as to whether before makin, such an adjustment, the petitioner had been ,iven prior intimation about the proposed adjustment in terms of section 245 (of Income Tax Act, 1961).

7. Section 245 (of Income Tax Act, 1961) envisa,es that when a refund is found to be due to any person under any of the provisions of the Act, 1961, the Revenue can set off/adjust the amount to be refunded or any part of that amount, a,ainst the sum which remains payable under the Act, 1961 by the person to whom the refund is due, after ,ivin, an intimation in writin, to such person of the action proposed to be taken under this section.

8. This Court in Suresh B. Jain (supra) held that ,ivin, of prior intimation under section 245 (of Income Tax Act, 1961) was mandatory. In Hindustan Unilever Ltd. (supra), it was held that the the purpose of ,ivin, prior intimation under section 245 (of Income Tax Act, 1961) was to enable a party to point out factual errors or some further developments for example that there was a stay of the demand, or that there was a Supreme Court’s decision coverin, the demand, which is the subject matter of a pendin, appeal which would not warrant an adjustment of the refund a,ainst the pendin, demand. It was also held that where a party raises such issues in response to the intimation, the offcer of the Revenue exercisin, powers under section 245 (of Income Tax Act, 1961) must record reasons why the objection was not sustainable and also communicate it to the said party and that this would ensure that the power of adjustment under section 245 (of Income Tax Act, 1961) is not exercised arbitrarily.

9. In the present case, it can be seen that the alle,ation that there was no prior intimation under section 245 (of Income Tax Act, 1961) has remained unrebutted as no proof of any such prior intimation was placed on record by the Revenue.

Following, the decisions (supra), we have no hesitation in holding, that the impugned action of respondent No.2 in makin, adjustments of the amount of Rs.61,64,649/- and Rs.2,22,89,942/- for assessment year 2008-09 against the allged outstanding, demands for assessment years 2014-15 and 2015-16 is bad and illegal and is accordingly quashed.

10. Notwithstanding what has been observed hereinabove, it would be open to respondent No.2 to exercise its discretion of makin, an adjustment in terms of section 245 (of Income Tax Act, 1961), after ,ivin, prior intimation and considering all the issues and objections which the petitioner may raise pursuant to such an intimation. Needful may be done in ei,ht weeks failin,, which the case of the petitioner will be processed for ,rant of refund as determined for the assessment year 2008-09.

11. With these observations, the petition stands disposed of.

[ABHAY AHUJA, J.] [DHIRAJ SINGH THAKUR, J.]