Calcutta High Court
Rajneesh Agarwal vs Income Tax Officer on 3 November, 2025
2025:CHC-OS:215
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
BEFORE:
HON'BLE JUSTICE RAJA BASU CHOWDHURY
WPO/398/2025
Rajneesh Agarwal
Vs.
Income Tax Officer, Ward 22(2)
For the petitioner : Mr. Vinay Shraff, Adv.,
Mr. Dev Kr. Agarwal, Adv.
Ms. Swarnwarshi Poddar, Adv.
For the respondent : Mr. Soumen Bhattacharjee, Adv.,
Mr. Ankan Das, Adv.
Ms. Shradhya Ghosh, Adv.
Heard on : 28.10.2025.
Judgment on : 3rd November, 2025.
RAJA BASU CHOWDHURY, J:
1. The present writ petition has been filed, inter alia, praying for a direction
upon the respondent to process the refund of Rs.22,73,833/- along with
updated interest under Section 243, which has been wrongly recorded as
244A of the Income Tax Act, 1961, (hereinafter referred to as the "said
Act"), until the date of payment.
2. The petitioner is a practising Chartered Accountant. According to the
petitioner, he maintains his books of accounts on a cash basis and
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accordingly, filed his Income Tax Return for the assessment year 2018-19
in Form ITR-3 on 14th August, 2018. The declared net income of the
petitioner was Rs.37,09,520/- on which the payable tax was Rs.9,53,117/-.
As would appear from the records, TDS to the tune of Rs.39,51,350/- was
deducted, making the petitioner eligible to a refund of Rs.29,98,230/-.
Subsequently, the petitioner received an intimation under Section 143(1)
for the assessment year 2018-19 on 7th January, 2020 that the net amount
payable was Rs.9,75,430/- while the TDS allowed was Rs.1,68,300/-. Still
later the petitioner received an order under Section 154 of the said Act
dated 16th January, 2024. The order reflected a refund of Rs.55,54,357/-
out of which Rs.22,73,833/- was shown to be withheld under Section 245
of the said Act. Having regard to the withholding amount of Rs.22,73,833/-
, the petitioner had written a letter to the Income Tax Department regarding
the shortfall in refunding the amount of Rs.37,28,198/-. The petitioner
would contend that despite the refund of Rs.32,80,524/-being sanctioned
by the Department by order dated 16th January, 2024, the petitioner
received only Rs.18,26,159/- on 18th March, 2024. As would appear from
the above, Rs.14,65,365/- was withheld without any explanation.
Consequently, by communication in writing dated 20 th March, 2024, the
petitioner had requested the respondent to release both the aforesaid
amount of Rs.22,73,833/- which had been withheld under Section 245 of
the said Act, and the wrongly adjusted amount of Rs.14,65,365/-. In fact,
the petitioner had subsequently filed a rectification petition under Section
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154 of the said Act on 2nd August 2024 seeking refund of Rs.37,28,184/-
and had accordingly requested the Department to provide the details in
relation to withholding of the amount under Section 245 of the said Act.
Despite running from pillar to post and despite making a representation on
e-nivaran dated 4th October 2024, since the petitioner did not succeed in
getting refund, the petitioner was constrained to file a writ petition which
was registered as WPA No.6316 of 2025. The said writ petition was,
however, subsequently withdrawn on the assurance of the respondent that
the issue would be resolved. The petitioner received the refund of
Rs.14,99,725/- on 5th May 2025 and accordingly, having regard to the
assurance given by the respondent, the writ petition was withdrawn.
However, since nothing fructified, the petitioner had written a letter on 13 th
May, 2025 not only calling for an explanation from the respondent but also
seeking for the details of the figures which could have authorised the
respondent to withhold the amount by invoking the power under Section
245 of the said Act. Since no steps were taken thereafter, the instant writ
petition has been filed.
3. At the very outset, Mr. Bhattacharjee, learned Senior Standing counsel
appearing for the Income Tax Department, has raised the point of
maintainability and has contended that since the petitioner had previously
withdrawn the writ petition, the instant writ petition should not be
entertained. Mr. Bhattacharjee has submitted that by withdrawal of the
writ petition, the petitioner has in fact abandoned his claim. In support of
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the aforesaid contention, reliance has been placed on the judgment
delivered in the case of Sarguja Transport Service v. State Transport
Appellate Tribunal, M.P., Gwalior & Ors., reported in (1987) 1 SCC 5.
4. Responding to the above, Mr. Shraff has contended that the judgment in
the case of Sarguja Transport (supra) was delivered in the peculiar fact of
that case with the object of deterring Bench hunting for mala fide purpose.
According to Mr. Shraff, the above judgment has subsequently been
explained by the Hon'ble Supreme Court in the case of Sarva Shramik
Sanghatana (KV), Mumbai v. State of Maharashtra & Ors., reported in
(2008) 1 SCC 494. According to Mr. Shraff, the provisions of Order 23
Rule 1(4) of the Code of Civil Procedure, 1908 would apply to the plaintiff
seeking to withdraw the suit without permission of the Court and in such
case, he would be precluded from instituting the suit in respect of the
subject matter. This apart, he has also submitted that simply because the
writ petition proceeds on similar issue, the same would not attract the
provisions of Order 23 Rule 1(4) of the Code of Civil Procedure, 1908 as the
cause of action and the relief claimed in the second suit have to be the
same as that of the first suit. In the instant case, since the respondent has
also made part payment, and resiled from the assurance, the cause of
action for the subsequent writ petition is different from the first writ
petition. On such ground, he would submit that the judgment delivered in
the case of Sarguja Transport (supra) is distinguishable.
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5. Heard learned advocates for the respective parties and considered the
materials on record. I find that admittedly in this case an amount of
Rs.22,73,833/- is refundable to the petitioner out of Rs.32,80,524/- which
was originally refundable in favour of the petitioner, as would corroborate
from the intimation issued under Section 143(1) of the said Act for the
assessment year 2018-19 dated 7th January 2020. Later, on the basis of a
rectification application filed under Section 154 of the said Act, an order
was passed on 16th January 2024, whereunder the gross refundable
amount was shown to be Rs.55,54,357/-, out of which, Rs.22,73,833/- was
shown to be withheld and the net refundable amount was Rs.32,80,524/-.
Since despite making repeated representations thereafter, no fruitful
purpose was served, the petitioner was compelled to file a writ petition and
ultimately after much persuasion, the petitioner could succeed in getting
refund of Rs.18,26,159/- on 18th March 2024. However, since the balance
amount was not refunded, the petitioner was compelled to file a writ
petition which was registered as WPA No.6316 of 2025. The said writ
petition was subsequently withdrawn on 7th May 2025 which, the petitioner
claims, was under an assurance given by the respondent that the dispute
would be resolved. In fact, records would reveal that on 5 th May 2025, the
petitioner received a sum of Rs.14,99,725/- on account of refund.
However, since the disputes were not resolved, the petitioner, later, on 13 th
May 2025, had issued a letter and following the same, the present writ
petition has been filed.
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6. I find that though the respondent has raised the point of maintainability on
the ground that the petitioner has abandoned his previous claim by placing
reliance on the provisions of Order 23 Rule 1(4) of the Code of Civil
Procedure, 1908, such statement of the respondent does not appear to be
correct in the light of the sequence of events narrated hereinabove. Admittedly,
the respondent had refunded a sum of Rs.14,99,725/- to the petitioner on 5th
May 2025. Following the above, the petitioner withdrew the writ petition.
However, since no further step was taken by the respondent, the petitioner
had written the letter dated 13th May 2025 and ultimately the present writ
petition has been filed. It is equally true that the cause of action for the
previous writ petition and the present writ petition are not identical. In the
interregnum, a part of the petitioner's claim has already been allowed.
Admittedly, the petitioner is entitled to the refund as determined by the
Income Tax Department. The respondent has been holding onto the same
without any justification. Mr. Bhattacharjee, on instructions, has stated in
response to a query from the Court that no independent proceeding has
been initiated against the petitioner in respect of the withholding of
Rs.22,73,833/-. It is true that Section 245 of the said Act authorises the
Income Tax Department to set off refund against remaining tax payable.
Unfortunately, in the instant case, the respondent has not been able to
demonstrate that any amount is payable or is due from the petitioner. Law
does not sanction recovery of tax in absence of any specific charging
statutory provision. In the light of the above and since the cause of action
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for the instant petition is distinct from the previous petition, the judgment
delivered in the case of Sarguja Transport (supra) cannot assist the
petitioner
7. Having regard thereto, I am of the view that there is no scope for the
respondent to hold on the aforesaid amount. The writ petition is
accordingly allowed with consequential relief in the form of interest in
accordance with law in favour of the petitioner. It is expected that the
respondent shall complete the process of refund within a period of ten
weeks from the date of communication of this order.
8. There shall be no order as to costs.
9. Urgent Photostat certified copy of this order, if applied for, be made
available to the parties on priority basis upon compliance of all formalities.
(RAJA BASU CHOWDHURY, J.)
sm
AR(CR)
