[Cites 50, Cited by 0]
Calcutta High Court
P. S. Srijan Height Developers vs Assistant Commissioner Of Income Tax on 4 May, 2026
2026:CHC-OS:153
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
BEFORE:
THE HON'BLE JUSTICE OM NARAYAN RAI
WPO 780 OF 2025
P. S. SRIJAN HEIGHT DEVELOPERS
VS.
ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 32,
KOLKATA & OTHERS
For the Petitioner : Mr. Abhratosh Majumdar, Sr. Adv.
Mr. Saumya Kejriwal, Adv.
Ms. Ananya Rath, Adv.
Mr. Navin Mittal, Adv.
Mr. Debarghya Banerjee, Adv.
For the Respondents : Mr. Tarak Nath Jaiswal, Adv.
Mr. Madhu Jana, Adv.
Hearing Concluded on : 26.02.2026
Judgment on : 04.05.2026
Om Narayan Rai, J.:-
1. This writ petition under Article 226 of the Constitution of India assails recovery
of disputed demand for the assessment year 2018-19 by way of adjustments
from refund made in the intimation dated October 25, 2022 issued under
Section 143(1) of the Income Tax Act, 1961 (hereafter "the 1961 Act") for the
assessment year 2021-22 and the communication dated November 11, 2023
issued under Section 245 of the 1961 Act for the assessment year of 2022-23.
The petitioner has prayed for immediate release of an amount of
Page 1 of 33
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Rs.1,16,96,443/- recovered in excess of 20% of the disputed demand for the
assessment year 2018-19 along with appropriate interest under Section 244A
of the 1961 Act.
FACTS OF THE CASE:
2. The relevant facts of the case are as follows:-
a. The petitioner is a partnership firm. On October 15, 2018 it had filed its
return of income (hereafter "return") for the assessment year 2018-19
thereby declaring a total income of Rs.1,16,24,230/- (Rupees One Crore
Sixteen Lakh Twenty Four Thousand Two Hundred and Thirty) only.
b. The petitioner's case was selected for scrutiny assessment and ultimately an
order dated September 11, 2021 was passed under Section 143(3) read with
Section 144B of the 1961 Act thereby assessing the total income of the
petitioner at Rs.6,60,76,120/-. The said assessment was also followed by a
notice of demand of even date.
c. The petitioner assailed such assessment in appeal before the appellate
authority on September 22, 2021 under Section 246A of the 1961 Act. Such
appeal is pending.
d. On March 15, 2022 the petitioner filed its return for the assessment year
2021-22 declaring a total income of Rs.4,85,23,350/- and claimed a refund
of Rs.7,59,274/. The return was processed and a refund of Rs.7,58,210/-
was determined on October 25, 2022. On the same date i.e. October 25,
2022 itself, an intimation under Section 245 of the 1961 Act was issued to
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the petitioner thereby informing it that the entire refund of Rs.7,58,210/-
stood adjusted against demands for the assessment year 2009-2010 and
2018-19.
e. On December 31, 2022 the petitioner filed its return for the assessment year
2022-23 declaring a total income of Rs.2,54,61,800/- and claiming a refund
of Rs.1,56,22,708. The said return was processed and by intimation dated
September 27, 2023 issued under Section 143(1) of the 1961 Act, refund of
Rs. 1,64,03,820/- was determined.
f. On November 10, 2023 the petitioner received another notice under Section
245 of the 1961 Act by which the refund determined in favour of the
petitioner was proposed to be adjusted against outstanding demands of
Rs.37,740/- for the assessment year 2016-17 and Rs. 2,63,64,130/- for the
assessment year 2018-19. The said notice granted the petitioner a period of
21 days to take action there-against but way before expiry of the notice
period, on the very next day of the notice i.e. November 11, 2023, the entire
refund of Rs.1,64,03,820/- was adjusted against the demand for assessment
year 2018-2019.
g. The petitioner disputed the adjustment of refunds against demands arising
for the assessment year 2018-19 by a letter dated January 08, 2025 and
requested the respondent to release a sum of Rs. 1,16,96,443/- which had
been adjusted from the sums refunded to the petitioner by the Revenue for
the assessment year 2021-22 and 2022-23 in excess of 20% of the disputed
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demand for the assessment year 2018-19. Request was also made to grant
stay of the demand till disposal of the pending appeal. However nothing was
done by the Revenue. The petitioner followed up the said request by another
letter dated September 02, 2025 which too went unheeded. Hence the
present writ petition.
SUBMISSIONS ON BEHALF OF THE PETITIONER:
3. Mr. Majumder, learned Senior Advocate appearing on behalf of the petitioner
made the following submissions:-
a. In terms of the Instruction No.1914 dated February 02, 1993 partially
modified by the Office Memorandum being F. No. 404/72/93-ITCC dated
February 29, 2016 revised by the Office Memorandum being F. No.
404/72/93-ITCC dated July 31, 2017 and further revised by Office
Memorandum being F. No. 404/72/93-ITCC dated August 25, 2017 the
respondent Revenue Authorities cannot recover any sum in excess of 20% of
the disputed demand upon an appeal being preferred by the assessee
against the assessment order that gives rise to the disputed demand.
b. Attention was invited to paragraph 3 of the Office Memorandum being F. No.
404/72/93-ITCC dated February 29, 2016 to submit that the instruction
was necessitated in view of hardships faced by the assessee upon the
Revenue's insistence to pay high proportion of disputed demand. It was
submitted that in terms of the said Memorandum (which was subsequently
revised as aforesaid), if the Assessing Officer was of the view that the case
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required payment in excess of 20% of the disputed demand, it was
incumbent on him to refer it to the administrative Pr. CIT/CIT who would
then decide the quantum of payment to be made for staying the recovery of
the balance sum.
c. Once an appeal is preferred against the assessment order and the demand is
thus disputed, any adjustment beyond 20% of the disputed demand would
be without jurisdiction, if the same falls foul of the provisions of the
aforesaid two Office Memorandums dated February 29, 2016 and July 31,
2017.
d. A meaningful reading of the various provisions of Section 220(6) of the 1961
Act, would show that an Assessing Officer could treat an assessee in default
only in cases where the assessee has not paid the demand without assailing
the assessment order in appeal and not when appeal had been preferred.
e. A judgment of the Hon'ble Division Bench of Rajasthan High Court in the
case of Rajendra Kumar vs. Assistant Commissioner of Income-Tax &
Another1 was relied on to contend that if an appeal is filed against an
assessment order in the prescribed format within the prescribed time an
assessee will not be deemed to be an assessee in default. It was asserted that
in that case, upon finding that there was violation of the provisions of
Section 245 of the 1961 Act and that the appeal filed by the assessee had
remained pending for long, the Court had allowed the writ petition and
directed refund of the adjusted amounts with costs.
1 [2022] 445 ITR 622 (Raj)
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f. For the purpose of adjusting any sum from amounts refundable to an
assessee, the procedure prescribed under Section 245 of the 1961 Act must
be followed. Adjustment of demand under Section 245 of the 1961 Act must
be preceded by an intimation and disposal of the objection raised by the
assessee.
g. In support of the aforesaid contention, CBDT's Instruction No.12/2013
[F.No.312/55/2013-OT] dated September 09, 2013 was cited and it was
submitted that the Revenue had accepted the decision of the Hon'ble High
Court at Delhi in a suo motu case being Court On Its Own Motion vs. Union
of India2 whereby the Revenue had been directed to not only afford an
opportunity to the assessee to file response to the intimation under Section
245 of the 1961 Act but also to examine the reply given by the assessee and
communicate the same to the Central Processing Centre, Bengaluru
(hereafter "CPC").
h. A Co-ordinate Bench judgment of this Court in the case of Graphite India
Limited vs. Deputy Commissioner of Income-Tax & Others 3, was relied
on for the proposition that the Revenue is not entitled to adjust sums in
excess of 20% of the disputed demand from amounts refundable to the
assessee without disposing of the objection of the petitioner against the
intimation under Section 245 of the 1961 Act.
2 W.P.(C) 2659/2012, decided on March 14, 2013
3 [2022] 448 ITR 292 (Cal)
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i. Two unreported decisions of the Co-ordinate Benches of this Court in the
case of Danieli India Limited vs. The Assistant Commissioner of Income
Tax Central Certificate 2(2), Kolkata 4 and Gaurav Enterprises vs. Union
of India & Others5 were also cited for the same proposition.
j. A decision of the Hon'ble Supreme Court in the case of Assistant
Commissioner of Income-Tax vs. Rajendra Kumar 6 was next cited to
demonstrate that the aforesaid judgment of the Hon'ble Rajasthan High
Court had been carried in SLP before the Hon'ble Supreme Court but the
Revenue did not press the matter on merits and prayed only for waiver of
costs.
k. A judgment of the Hon'ble Division Bench of the Hon'ble Bombay High Court
in the case of M/s. Andrew Telecommunications India Private Limited
vs. Principal Commissioner of Income Tax & Others 7 was next pressed
into service for the proposition that a sum in excess of the threshold
percentage of the disputed demand (which was 15% at the material point of
time) as mentioned in the relevant office memorandum cannot be recovered
by the Assessing Officer if an appeal against an assessment order is pending.
l. It was next submitted that the provisions of Section 220(6) and Section 245
of the 1961 Act must be read harmoniously in order to ensure that an
assessee who had preferred an appeal against an assessment order was not
4 W.P.O. No. 2294 of 2022, decided on September 01, 2023
5 W.P.O. No. 700 of 2025, decided on December 01, 2025
6 [2023] 154 taxmann.com 534 (SC)
7 2016 SCC OnLine Bom 9925
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unduly treated as an assessee in default by the Assessing Officer by
exercising discretion wrongly.
m. A judgment of the Hon'ble Supreme Court in the case of Sultana Begum vs.
Prem Chand Jain8 was cited in support of proposition that Courts must
avoid a clash between two provisions of a statute so that one section of the
statute does not defeat the other provision and in case of conflict between
two provisions the Court should harmonize the two provisions.
n. He invited the attention of the Court to the intimation dated October 25,
2022 under Section 245 of the 1961 Act and indicated that while the same
granted 30 days' time to the petitioner to respond the said intimation, failing
which adjustment would be done, the Revenue adjusted the refund in
respect of assessment year 2021-2022 against the disputed demand for the
assessment year 2018-19 on the same day i.e. October 25, 2022 itself. He
demonstrated from the intimation dated November 10, 2023 that although
the intimation indicated that the petitioner had 21 days to take steps against
the said intimation, yet the refund in respect of assessment year 2022-23
was adjusted against the disputed demand for the assessment year 2018-19
on the very next day i.e. on November 11, 2023.
SUBMISSIONS ON BEHALF OF THE RESPONDENTS:
4. Mr. Jaiswal, learned Advocate appearing for the Revenue made the following
submissions (both orally as well as through written notes):-
(1997)1 SCC 373
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a. A combined reading of sub-sections (1), (2), (3) and (4) of Section 220 of the
1961 Act, would show that specified in the notice of demand under Section
156 of the 1961 Act is not paid by an assessee within the time limit specified
in sub-section (1) or extended in sub-section (3) of Section 220 of the 1961
Act then such assessee shall be deemed to be in default under sub-section
(4) of Section 220 of the 1961 Act. The judgment of the Hon'ble Supreme
Court in the case of Mohan Wahi vs. Commissioner of Income-Tax 9 was
cited in support of the proposition.
b. A judgment of the Hon'ble Division Bench of the Hon'ble High Court of
Madhya Pradesh in Northern Coal Fields Limited vs. Assistant
Commissioner of Income-Tax & Others10 was cited to contend that the
Revenue was well within its authority to adjust refunds against outstanding
demands even beyond 20% of the disputed demand and that the mandate of
Section 245 of the 1961 Act stood complied with upon intimation being given
to the assessee.
c. The judgment of the Hon'ble Madhya Pradesh High Court in the case of
Northern Coal Fields Limited (supra) was assailed in SLP11 before the
Hon'ble Supreme Court but the same was not interfered with by a reasoned
order observing that after adjustment, any balance refund shall be returned
to the assessee.
9 [2001] 16 Taxman 63 (SC)
10 [2017] 398 ITR 508 (MP)
11 Northern Coal Fields Limited vs. Assistant Commissioner of Income-Tax & Others, SLP Appeal (C) No. 18140 of 2017
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d. A judgment of the Hon'ble Delhi High Court in the case of Chemester Food
Industry Private Limited vs. Central Processing Centre 12 was cited to
argue that in absence of conditions for grant of stay, the outstanding
demand remains enforceable in law and may validly be recovered by way of
adjustment of refund due to the assessee.
e. The petitioner failed to exercise due diligence at every material stage of the
proceedings inasmuch as the petitioner neither discharged the outstanding
demand nor sought any stay of recovery in accordance with law. The
petitioner failed to respond to the statutory notices issued by the Revenue.
f. Despite repeated notices issued by the appellate authority, the petitioner
failed to respond within reasonable time and filed its written submissions
only after one year and seven months from the date of issuance of the said
notice. It was submitted that notices were issued to the petitioner on March
13, 2024, September 07, 2024 and October 03, 2024 thereby calling upon
the petitioner to file its written submissions but the petitioner merely sought
adjournments and ultimately filed written submissions only on November
10, 2025.
g. He referred to a print out of the "Respond to Outstanding Demand User
Manual" (hereafter "User Manual") downloaded from the website of the
Revenue and sought to demonstrate that the petitioner did not respond to
the outstanding demand and register his protest against the adjustment. He
pointed at "Step 2" in the said User Manual and indicated that various
12 [2025] 174 taxmann.com 791 (Delhi)
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reasons had been enlisted therein from amongst which the petitioner could
have chosen the reason appropriate for it.
h. He also cited the intimation issued to the petitioner for the assessment year
2022-2023 under Section 143(1) of the 1961 Act and submitted that the said
intimation contained a note that the refund determined in the intimation
along with interest under Section 244A of the 1961 Act was subject to
adjustment of outstanding demand(s), if any, under Section 245 of the 1961
Act. He asserted that the petitioner ought to have objected against the
outstanding demand in the manner indicated in the User Manual upon
receipt of the intimation under Section 143(1) of the 1961 Act.
i. Reliance was also placed on a judgment of this Court in the case of Gouri
Shankar Awasthi vs. Income-Tax Officer 13 to assert that mere filing of an
appeal does not amount to stay.
j. It was submitted that as the petitioner did not file any response to the
Revenue's notices under Section 245 of the 1961 Act therefore the Revenue
proceeded to adjust the refund against the outstanding demand pertaining
to assessment year 2018-19 on November 13, 2023.
k. The writ petition suffers from gross delay and laches. The cause of action as
regards adjustment of refund under Section 245 of the 1961 Act arose on
October 25, 2022 and thereafter on November 11, 2023. The petitioner
remained completely silent for all these years and approached the Court only
on October 27, 2025 after an unexplained delay of more than three years
13(1970) 78 ITR 784
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from the accrual of cause action at the first instance and nearly two years
from the subsequent adjustment. Such inordinate and unexplained delay
disentitles the petitioner to any relief under Article 226 of the Constitution of
India.
PETITIONER'S REJOINDER SUBMISSIONS:
5. Mr. Majumdar learned Senior Advocate appearing for the petitioner rejoined by
submitting as follows:-
a. While the intimation dated November 10, 2023 under Section 245 of the
1961 Act granted 21 days' time for response by the petitioner, the
respondent no.2 adjusted the entire refund on the very next day thereby
preventing the petitioner from raising any objection to the proposed
adjustment at all.
b. Since the adjustments, in excess of 20% of the disputed demand, were done
much prior to the issuance of notices calling upon the petitioner to file
written submissions in the appeal, therefore, the delay in filing written
submissions by the petitioner cannot be cited to justify such adjustments.
c. The Revenue's defence on the petitioner's failure to respond to the
outstanding demand in the manner prescribed by the User Manual does not
take away the petitioner's right to respond to the intimation under Section
245 of the 1961 Act and in the case at hand such right has evidently been
trampled.
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d. The Court was taken through the provisions of Section 220 and 245 of the
1961 Act and it was asserted that adjustment could never be made
unilaterally without affording any opportunity to the assessee to object to the
same.
6. Both the parties have attempted to distinguish the judgments cited by each
other.
ANALYSIS & DECISION:
7. Heard learned Advocates for the respective parties and considered the material
on record.
8. While there is no period of limitation prescribed for invocation of writ remedies
under Article 226 of the Constitution of India, it is now well settled that a writ
petition must be filed with utmost expedition and within a reasonable time.
Before addressing the issue of delay, the foundational parameters set by the
Hon'ble Supreme Court as regards the point of delay need to be noticed.
9. In the case of State of Madhya Pradesh & Another vs. Bhailal Bhai &
Others14, the Hon'ble Supreme Court established a guiding framework for
assessing delays in approaching the High Court under Article 226 of the
Constitution of India in the following words:-
"21. ...........It appears to us the maximum period fixed by the legislature as the time
within which the relief by a suit in a Civil Court must be brought may ordinarily be taken
to be a reasonable standard by which delay in seeking remedy under Article 226 can be
measured. The court may consider the delay unreasonable even if it is less than the
period of limitation prescribed for a civil action for the remedy but where the delay is more
14 AIR 1964 SC 1006 : 1964 SCC OnLine SC 10
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than this period, it will almost always be proper for the court to hold that it is
unreasonable."
10. In Ramchandra Shankar, Deodhar & Others vs. State of Maharashtra &
Others15 which was an Article 32 case before the Hon'ble Supreme Court and
then in M/s. Dehri Rohtas Light Railway Company Limited vs. District
Board, Bhojpur & Others16, (which had emanated from a writ petition under
Article 226 of the Constitution of India) it was elucidated that the rule which
says Court may not inquire into belated and stale claims is not a rule of law, but
a rule of practice based on sound and proper exercise of discretion, and there is
no inviolable rule that whenever there is delay, the Court must necessarily refuse
to entertain the petition. In the case of Karnataka Power Corpn. Ltd. &
Another vs. K. Thangappan & Another 17, the Hon'ble Supreme Court while
referring to several celebrated authorities of the Hon'ble Supreme Court which
approved the dictum of Sir Barnes Peacock in the Privy Council judgment in the
case of Lindsay Petroleum Co. vs. Prosper Armstrong Hurd 18 instructed as
follows:-
"6. Delay or laches is one of the factors which is to be borne in mind by the High Court
when they exercise their discretionary powers under Article 226 of the Constitution. In an
appropriate case the High Court may refuse to invoke its extraordinary powers if there is
such negligence or omission on the part of the applicant to assert his right as taken in
conjunction with the lapse of time and other circumstances, causes prejudice to the
opposite party. Even where fundamental right is involved the matter is still within the
discretion of the Court as pointed out in Durga Prashad v. Chief Controller of Imports and
15 (1974) 1 SCC 317
16 (1992) 2 SCC 598
17 (2006) 4 SCC 322
18 (1874) 5 PC 221
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Exports [(1969) 1 SCC 185 : AIR 1970 SC 769] . Of course, the discretion has to be
exercised judicially and reasonably.
7. What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum
Co. v. Prosper Armstrong Hurd [(1874) 5 PC 221: 22 WR 492] (PC at p. 239) was approved
by this Court in Moon Mills Ltd. v. M.R. Meher [AIR 1967 SC 1450] and Maharashtra
SRTC v. Shri Balwant Regular Motor Service [(1969) 1 SCR 808 : AIR 1969 SC 329] . Sir
Barnes had stated:
"Now, the doctrine of laches in courts of equity is not an arbitrary or a technical
doctrine. Where it would be practically unjust to give a remedy either because the party
has, by his conduct done that which might fairly be regarded as equivalent to a waiver of
it, or where by his conduct and neglect he has though perhaps not waiving that remedy,
yet put the other party in a situation in which it would not be reasonable to place him if
the remedy were afterwards to be asserted, in either of these cases, lapse of time and
delay are most material. But in every case, if an argument against relief, which otherwise
would be just, is founded upon mere delay, that delay of course not amounting to a bar
by any statute of limitation, the validity of that defence must be tried upon principles
substantially equitable. Two circumstances always important in such cases are, the
length of the delay and the nature of the acts done during the interval which might affect
either party and cause a balance of justice or injustice in taking the one course or the
other, so far as it relates to the remedy."
11. In the case at hand the petitioner seeks issuance of a writ of mandamus
commanding the Revenue to release/refund with interest the amounts
adjusted in excess of 20% of the disputed demand pertaining to assessment
year 2018-19 from the sums refundable to the petitioner in respect of
assessment years 2021-22 and assessment year 2022-23. Such adjustments
had been done upon intimations dated October 25, 2022 and November 10,
2023 being issued under Section 245 of the 1961 Act.
12. It can be easily noticed that the first of the two adjustments by which the
petitioner is aggrieved was done more than three years prior to the institution
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of the writ petition. To be precise, the adjustment from sums refundable to the
assessee in respect of assessment year 2021-22 was done on October 25, 2022
upon issuing intimation under Section 245 of the 1961 Act on the same date,
but the writ petition has been filed only on October 27, 2025 i.e. three years
thereafter. There is no explanation at all, in the writ petition for the belated
approach to this Court. The claim for refund is in the nature of a money claim,
a suit wherefor would have been barred by limitation after three years. In such
view of the matter, having regard to the law laid down by the Hon'ble Supreme
Court in the case of Bhailal Bhai (supra), this Court is not inclined to exercise
its discretion and entertain any challenge to the said adjustment in this
proceeding. The said adjustment will, in any case, be subject to the result of
the pending appeal filed by the assessee against the assessment order dated
September 11, 2021.
13. The next intimation under Section 245 of the 1961 Act is dated November 10,
2023. The writ petition has been filed nearly two years after the said date,
which means its institution is within the period prescribed for filing a suit for
the same relief. There is however, no explanation as to why the writ petition
could not be instituted earlier. Nonetheless, having regard to the fact that the
case involves allegedly illegal adjustment of refunds against disputed tax
demand, where - neither any right has accrued to a third party owing to the
delayed approach; nor is there a case of waiver of the right of the petitioner to
get the adjusted amount refunded, since the adjustments that have been made
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would, in any case be subject to the pending appeal, therefore this Court is
disinclined to dismiss the writ petition at the threshold. Furthermore, since the
writ petition has been filed seeking refund of the amounts adjusted under
Section 245 of the 1961 Act during pendency of the appeal, therefore, mere
passage of time would not create any indefeasible right in the Revenue to retain
such amount, in case it is found that the Revenue was not entitled to adjust
the said amount or that the Revenue has adjusted the said amount de hors
law. In such view of the matter it cannot be said that entertainment of the writ
petition would cause prejudice to the Revenue.
14. The main issue which falls for consideration of this Court in the case at hand is
whether the Revenue was justified in adjusting any sum in excess of 20% of the
disputed demand once an was appeal had been preferred by the assessee
against the assessment order dated September 11, 2021.
15. Section 220 of the 1961 Act provides for the situations when tax becomes
payable and when an assessee is deemed to be in default. The following
provisions of the said section are relevant for the present purpose:-
"220. When tax payable and when assessee deemed in default:
(1) Any amount, otherwise than by way of advance tax, specified as payable in a
notice of demand under Section 156 shall be paid within thirty days of the service of the
notice at the place and to the person mentioned in the notice:
Provided that, where the Assessing Officer has any reason to believe that it will be
detrimental to revenue if the full period of thirty days aforesaid is allowed, he may, with
the previous approval of the Joint Commissioner, direct that the sum specified in the
notice of demand shall be paid within such period being a period less than the period of
thirty days aforesaid, as may be specified by him in the notice of demand.
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(1-A) Where any notice of demand has been served upon an assessee and any
appeal or other proceeding, as the case may be, is filed or initiated in respect of the
amount specified in the said notice of demand, then, such demand shall be deemed to
be valid till the disposal of the appeal by the last appellate authority or disposal of the
proceedings, as the case may be, and any such notice of demand shall have the effect
as specified in Section 3 of the Taxation Laws (Continuation and Validation of Recovery
Proceedings) Act, 1964 (11 of 1964).]
*********************** *********************** ***********************
(3) Without prejudice to the provisions contained in sub-section (2), on an application
made by the assessee before the expiry of the due date under sub-section (1), the
Assessing Officer may extend the time for payment or allow payment by instalments,
subject to such conditions as he may think fit to impose in the circumstances of the case.
*********************** *********************** ***********************
(6) Where an assessee has presented an appeal under Section 246 or Section 246-A
the Assessing Officer may, in his discretion, and subject to such conditions as he may
think fit to impose in the circumstances of the case, treat the assessee as not being in
default in respect of the amount in dispute in the appeal, even though the time for
payment has expired, as long as such appeal remains undisposed of."
16. Thus Section 220(1) of the 1961 Act specifies the time limit for payment of the
amount demanded by a notice of demand under Section 156 of the 1961 Act.
Section 220(3) thereof vests authority in the Assessing Officer to extend the
said time or allow payment through installments on an application made by the
assessee before the expiry of the due date under sub-section (1) of Section 220
of the 1961 Act.
17. Section 220(1A) of the 1961 Act is significant as it provides that once a notice
of demand is served upon the assessee it remains valid till the disposal of any
appeal or other proceedings that may have been initiated by the assessee in
respect of the demand.
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18. Section 220(6) of the 1961 Act vests discretionary authority in the Assessing
Officer to treat the assessee as not being in default in respect of the amount in
dispute in appeal even though the time for payment has expired as long as such
appeal remains undisposed of. Notably, in contrast to the provisions of Sub-
Section (3) of Section 220 of the 1961 Act does not provide for filing of any
application, which is indicative that discretion can be exercised by the
Assessing Officer even suo motu. In such context the following observations of a
Co-ordinate Bench of this Court in the case of Golam Momen vs. Deputy
Commissioner of Income-Tax & Others 19 may be noticed:-
"9. Though, it is described as a discretion, but, in fact, an assessee has a right to
invoke such discretion. When such discretion is invoked, the Assessing Officer has to
exercise the discretion having regard to the facts and circumstances of the case
judiciously and in the process, it may exercise the discretion either in favour or against
the assessee. From the plain language used in the section, it can be contended that the
Assessing Officer may exercise the discretion suo motu. But such discretion can be
exercised only where an appeal is preferred. Such information can be brought within the
notice of the Assessing Officer by the assessee. In the process, it is up to the assessee to
make an application seeking to invoke the discretion. Therefore, an application is not
forbidden or prohibited. The expression used in this sub-section makes it clear that the
scope of making an application is implicit in the section.
10. When such discretion is invoked, the authority has to exercise this discretion
guided by certain considerations. The consideration which may form guidance for
exercising the discretion may be summarised thus: (1) Whether there is a prima facie case
in favour of the assessee; (2) the amount to tax and penalty involved in the appeal; (3) the
capacity of the assessee of pay the amount; (4) undue hardship to the assessee; and (5)
nature of security offered by the assessee. While considering the above aspects, the
authority must have also in mind the adverse effect that may ensue on the public revenue
in case stay is granted, though, it may not be the primary concern. In Siemens Engi-
19 (2002) 256 ITR 754 : 2002 SCC OnLine Cal 844
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neering and Mfg. Co. of India Ltd. v. Union of India, (1976) 2 SCC 981 : [1976] AIR 1976
SC 1785; Travancore Rayons Ltd. v. Union of India, (1969) 3 SCC 868 : [1971] AIR 1971
SC 862; Associated Tubewells Ltd. v. R.B. Gujarmal Modi, [1957]AIR 1957 SC 742, it was
held that the order should ex facie disclose the reason for decline or grant of stay and that
such exercise of discretion is a quasi-judicial function and, therefore, it has to be exercised
fairly and reasonably and not arbitrarily or capriciously.
11. Since the power is quasi-judicial in nature, it implies that an opportunity is to be
given to the assessee when it seeks to invoke such discretion. The opportunity of hearing
is implicit in the provision. Support may be drawn from the decisions cited above. In Mool
Chand Mahesh Chand v. CIT, [1978] 115 ITR 1 (All) and Mrs. N. Savithri Sam v. ITO,
[1969] 72 ITR 730 (Mad), it was held that such exercise of discretion is a quasi-judicial
function."
[Emphasis supplied]
19. If no application for stay is filed and/or no stay is granted, in such cases
irrespective of pendency of the appeal, the Revenue would be justified in
proceeding with recovery of the amount specified in the notice of demand. Such
recovery must, however, be made only in accordance with the provisions of the
1961 Act. While the specific provisions for recovery have been enumerated in
Chapter XVII of the 1961 Act, yet the provisions of Section 245 of the 1961 Act
have also been recognised as those pertaining to recovery 20.
20. The expression, "after giving an intimation in writing to such person of the action
proposed to be taken under this sub-section" employed in Sub-Section (1) of
Section 245 of the 1961 Act makes it explicit that the intimation must be prior
to the adjustment and axiomatically the adjustment mentioned in the
intimation would then only be in contemplation (i.e. there would be no
adjustment done at that time). What could be the object of issuance of such
20 Maruti Suzuki India Ltd. vs. Deputy Commissioner of Income-Tax, (2012) 347 ITR 43; Rajendra Kumar (supra)
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prior intimation? Could it be mere informing the assessee that amounts
refundable to it are being adjusted against outstanding demands? There is
broad judicial consensus on the point that the intimation is given for the
purpose of affording an opportunity to the assessee to register its objection to
such adjustment and it is not a formality aimed at merely informing the
assessee about the contemplated adjustment 21. Indeed, if keeping the assessee
informed had been the only purpose, the same could be done post adjustment
as well.
21. In fact the legal position could not have been otherwise. Section 245 of the
1961 Act vests discretionary authority in the Revenue to adjust any sum
refundable to the assessee against any outstanding demand. Exercise of such
authority would visit the assessee with civil consequences. That being so it
must be exercised in a fair and reasonable manner compatible with the
principles of natural justice. It is well settled that any act or order involving
civil consequences must be preceded by observance of principles of natural
justice and that even if a statute is silent as regards the same such principles
can be read into it, unless the same are excluded by necessary implication.
(See S.L. Kapoor vs. Jagmohan & Others 22)
22. There is nothing in Section 245 of the 1961 Act that indicates exclusion of
principles of natural justice by necessary implication. Thus, in order to be just,
21 Glaxo Smith Kline Asia (P) Ltd. vs. CIT, (2007) 290 ITR 35; Hindustan Unilever Ltd. vs. CIT, (2015) 377 ITR 281; S.
Narayanan vs. CIT, (2017) 395 ITR 271; Avana Global FZCO vs. CIT, 2024 SCC OnLine Bom 6086; Graphite India
(supra)
22 (1980) 4 SCC 379
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fair and reasonable in adjusting refunds of an assessee, it would be imperative
for the Revenue to issue notice/intimation to the assessee, examine the
objections raised by the assessee and then decide as to whether adjustment
should be made or not. Such obligation of the Revenue also finds mention in
the CBDT's Instruction No.12/2013 [F.No.312/55/2013-OT] dated September
09, 2013 which was issued pursuant to the directions passed by the Hon'ble
Delhi High Court in the suo motu case referred to hereinabove.
23. While examining and dealing with such objection, the Assessing Officer would
do well to keep in mind the width of discretion vested in him by Section 220(6)
of the 1961 Act. This is clearly the essence of the judgment of the Hon'ble
Rajasthan High Court as well, in the case of Rajendra Kumar (supra).
24. In the present case it has been noticed that no application under Section
220(6) of the 1961 Act has been filed by the petitioner before the relevant
Assessing Officer seeking stay of the demand (i.e. not to treat the assessee in
default). The Assessing Officer would therefore be quite justified in proceeding
with adjustment of refund with the outstanding demand but then, such
adjustment should conform to the requirements of Section 245 of the 1961 Act
as discussed earlier.
25. It is evident from records that prior intimation under Section 245 of the 1961
Act was given on November 10, 2023 allowing the assessee 21 days to respond
thereto, but the refunds were adjusted on the following day itself. This
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constitutes a clear breach of the authority to adjust in terms of the
aforementioned provision.
26. Once an intimation/notice under Section 245 of the 1961 Act was issued
indicating a period of 21 days for taking "action", the right of the petitioner to
file objection thereto got activated, which in turn would have invoked the
Assessing Officer's discretion under Section 220(6) of the 1961 Act to treat the
petitioner as not in default. Such right, therefore, could not have been abruptly
foreclosed by the Revenue.
27. There is ample weight of authorities on the point that while exercising
discretion under Section 220(6) of the 1961 Act, the Assessing Officer is
required to act fairly, reasonably and judiciously keeping in mind the
guidelines mentioned in the Instruction dated February 02, 1993 and the
Office Memorandum dated February 29, 2016, July 31, 2017 and August 25,
2017.
28. In Graphite India Limited (supra) a Co-ordinate Bench of this Court directed
refund of the amount adjusted in excess of 20% of the disputed demand upon
finding that an appeal against the assessment order wherefrom the demand
had arisen was pending and that neither the order under Section 245 of the
Act nor the order of stay of demand under Section 220(6) of the 1961 Act cited
any special/particular reason as to why any sum in excess of 20% of the
disputed demand was required to be adjusted.
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29. In Danieli India Limited (supra) the Court found that in the facts of the said
case, the Assessing Officer could not have adjusted more than 20% of the
disputed demand when the appeals against the assessment orders were
pending.
30. In Gaurav Enterprises (supra), the Court has followed Graphite India
Limited (supra) and Danieli India Limited (supra) and directed refund of the
amounts adjusted in excess of 20% of the disputed demand in a situation
where an appeal that had been filed against the relevant assessment order
within the statutory time-frame was pending since long and even the
application for stay that had filed before the relevant Assessing Officer within a
few months of the filing of appeal had been kept pending.
31. In M/s. Andrew Telecommunications India Private Limited (supra) the
Hon'ble Bombay High Court granted stay of the demand upon deposit of 15% of
the disputed demand in terms of the then operating office memorandum upon
setting aside the order of rejection of stay passed by the Assessing Officer.
32. Apart from the purpose of buttressing the argument that failure of the Revenue
to complete the drill of Section 245 of the 1961 Act was fatal to the adjustment
of refund, the judgment in the case of Rajendra Kumar (supra) was cited by
the petitioner for contending that on filing of appeal within time an assessee
cannot be treated to be in default. Rajendra Kumar (supra) has observed
that:-
"Nowhere in the provisions of Section 220(6) of the Income Tax Act, it is specified that
the stay application has to be filed. The mandate of Section 220(6) of the Income Tax Act
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makes it very clear that once an appeal is filed within the time in the prescribed format,
the assessee will not be deemed as an "assessee-in-default."
33. While it is true that Section 220(6) of the 1961 Act does not provide filing of an
application, but at the same time it has been held by this Court in Golam
Momen (supra) that relevant information required for exercising discretion to
treat the assessee as not in default can be brought to the notice of the
Assessing Officer by the assessee only and it is upto the assessee to make an
application to invoke the discretion of the Assessing Officer. The Court further
held that the scope of making an application is implicit in the section.
34. If an assessee has neither filed any application for stay nor filed any objection
to the intimation under Section 245 of the 1961 Act then upon expiry of the
time specified in the intimation, there would/could be no impediment on the
part of the Assessing Officer in adjusting the full amount because there is no
deemed stay of the demand merely on filing of appeal. Law on such score is
fairly well settled that mere filing of appeal would not amount to stay. In fact, if
mere filing of appeal would have amounted to stay of demand or would have
led to the assessee not being treated in default, then by that logic the
requirement of making any payment or deposit, not to speak of 20% of the
disputed demand, would not have been there at all. Moving further, if the
lodgement of appeal would mean that the assessee would not be in default, the
provision of Section 220(6) of the 1961 Act which allows the Assessing Officer
to exercise discretion not to treat an assessee in default would also be rendered
meaningless. The Assessing Officer would be left with nothing to exercise
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discretion for. Therefore, this Court respectfully disagrees with the observations
made in Rajendra Kumar (supra) to the limited extent "that once an appeal is
filed within the time in the prescribed format, the assessee will not be deemed as
an "assessee-in-default."
35. However, this Court hastens to add that while there is no dearth of jurisdiction
in the Assessing Officer to treat the assessee in default in absence of an order
staying the demand as aforesaid, yet when the Assessing Officer would proceed
to adjust any sum from the amounts refundable to the assessee by exercising
discretion under Section 245 of the 1961 Act, it would be incumbent on the
Assessing Officer to keep in mind the guidelines framed by the Revenue (as
indicated in the Instruction dated February 02, 1993 and the Office
Memorandum dated February 29, 2016, July 31, 2017 and August 25, 2017)
for the purpose of granting stay inasmuch as the discretion under Section
220(6) of the 1961 Act can be exercised suo motu as well. Furthermore, in any
case it is settled law that discretion must be exercised judiciously, fairly and
reasonably. In this connection the observations made by this Court in the case
of Aluminium Corporation of India Limited vs. C. Balakrishnan &
Others23, while examining a substantially similar provision of the Wealth Tax
Act, 1957 whereby the Wealth Tax Officer had been vested with discretion not
to treat an assessee in default during pendency of appeal, deserve notice. In
the said case, the Court followed the dictum of the Hon'ble Division Bench of
this Court in the case of Kashiram Agarwalla vs. Collector of 24-Parganas
23 AIR 1959 Cal 114
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& Others24. The relevant observations of this Court in the case of Aluminium
Corporation of India Ltd. (supra) are extracted hereinbelow:-
"In my opinion, the law has been rightly laid down by Das Gupta, ]., and there can be
no doubt that the matter is one of discretion to be exercised judicially. A judicial exercise
of discretion involves a consideration of the facts and circumstances of the case in all its
aspects The difficulties Involved in the issues raised in the case and the prospects of the
appeal being successful is one such aspect. The position and economic circumstances of
the assessee is another. If the officer feels that the stay would put the realisation of the
amount in jeopardy that would be a cogent factor to be taken into considerations. The
amount involved is also a relevant factor. If it is a heavy amount, it should be presumed
that immediate payment, pending an appeal in which there may be a reasonable chance
of success, would constitute a hardship. The Wealth Tax Act has just come into operation.
If any point is involved which requires an authoritative decision, that is to say, a
precedent, that is a point in favour of granting a stay. Quick realisation of tax may be an
administrative expediency, but by itself it constitutes no ground for refusing a stay. While
determining such an application, the authority exercising discretion should not act in the
role of a mere tax-gatherer."
[Emphasis supplied]
36. The following observations of the Hon'ble Gujarat High Court in the case of
Sun Pharmaceutical Industries Limited vs. Deputy Commissioner of
Income-Tax & Another25 are also pertinent in the present context:-
"21. So far as section 245 of the Act is concerned, there need not be any debate as
regards the power of the Department to adjust the refund, however, such power should be
exercised in a reasonable manner. Here is a case wherein the assessee is sought to be
deprived of a huge amount towards the refund. A huge amount towards refund is being
declined on the ground that a demand is pending for the previous year. If such unbridled
power is assumed by the Revenue to adjust the refund, it would result in a situation
where two assessees against whom equal demands are raised will be treated differently.
One assessee who has to recover significant amount towards the refunds and another
24 (1958) 33 ITR 800
25 (2021) 438 ITR 357 : 2021 SCC OnLine Guj 3070 : (2021) 322 CTR 787
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who has not to recover the refunds would be put in two different categories because in the
first case refund would be adjusted whereas in the second case, no such adjustment is
possible."
37. Sultana Begum (supra) is an authority inter alia for the proposition that a
statute should be read as a whole and its provisions should be read
harmoniously in order to avoid conflict between them.
38. The Revenue had urged that the petitioner ought to have responded to or ought
to have objected against the outstanding demand in the manner indicated in
the User Manual upon receipt of the intimation under Section 143(1) of the
1961 Act and by not doing so the petitioner has in effect lost its right to object
to the intimation under Section 245 of the 1961 Act. This Court is unable to
agree to such contention. The adjustments that are made under Section 143(1)
of the 1961 Act are quite different form the adjustments made under Section
245 of the 1961 Act. The two provisions operate in two distinct fields, serve
different legislative purposes and operate in separate stages of the assessment
and recovery process. Not responding to an outstanding demand indicated in
an intimation under Section 143(1) of the said Act would not even minimally
weaken an assessee's right to object to an intimation under Section 245 of the
1961 Act.
39. Insofar as the Revenue's contention that the petitioner ought to have
responded to or objected to the outstanding demand in terms of the User
Manual is concerned, the same also does not appeal at all. When a clear and
specific notice under Section 245 of the 1961 Act was issued to the petitioner
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the same in any case acted as a fresh statutory trigger to object thereto which
statutorily over-rid the general "Outstanding Demand" dashboard status. The
notice granted a specific time-bound opportunity to the petitioner to object to
the proposed adjustment. In such view of the matter, it cannot be argued that
the demand stood "confirmed" because the petitioner did not proactively
dispute it on the portal earlier.
40. As regards the contention of the Revenue that the petitioner delayed the
disposal of the appeal, I find that the argument is not without substance.
Indeed, the petitioner has failed to file the written submissions within the time
indicated by the appellate authority and prayed for adjournments on three
occasions. That however, does not justify the illegal adjustment by the
Revenue. Moreover, it has been rightly contended by the petitioner that the
Revenue had adjusted the amounts much prior to the dates when the notices
calling upon the petitioner to file written submissions were issued. The belated
filing of written submissions by the petitioner therefore cannot, in the facts of
this case, help the Revenue. Indeed if the petitioner had been instrumental in
delaying the appeal after being granted stay, that might have been a good
ground to recall or appropriately review or modify an order of stay, in
accordance with law.
41. The judgment in the case of Mohan Wahi (supra) is an authority for the
proposition that for the purpose of treating an assessee in default, a notice of
demand must be served upon the assessee. If after service of notice the
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assessee does not pay the sum demanded in terms of the provisions of Section
220 of the 1961 Act, then recovery proceedings can be launched. In the said
case, the sale conducted in recovery proceedings was set aside by the Hon'ble
Supreme Court upon finding that the assessee was not in default as notice of
demand had not been served upon the assessee. The said judgment is of no
avail for the Revenue in the facts of the present case.
42. Northern Coal Fields Limited (supra) was rendered in an absolutely different
fact situation where a conditional stay for a limited period had been granted by
the Assessing Officer under Section 220(6) of the 1961 Act and adjustments
were made upon expiry of the period of stay. The observation made in the said
judgment that mere service of intimation under Section 245 of the 1961 Act
would serve the purpose does not appear to be in consonance with the settled
position that has been discussed hereinabove and has also been accepted by
the Revenue in CBDT's Instruction No.12/2013 [F.No.312/55/2013-OT] dated
September 09, 2013 pursuant to the directions of the Hon'ble Delhi High Court
in the suo motu case. This Court in the case of Graphite India Limited (supra)
has negated a similar contention of the Revenue, after taking note of several
decisions cited on this point, in the following words:-
"9. Mr. Dutta, learned advocate appearing for the respondents opposing this writ
petition submits that under section 245 of the Act there is no provision for granting of
hearing before taking action of adjustment and it is not mandatory. He also submits that
the whole issue relating to the assessment year 2015-16 can be resolved in the pending
appeal before the Commissioner of Income-tax (Appeals) including the impugned action
under section 245 of the Act. I am not convinced with the argument and submission of Mr.
Dutta in view of admitted facts as recorded above and the law laid down in the aforesaid
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judgments cited by the petitioner that affording of opportunity of hearing to the assessee-
petitioner before making any adjustment under section 245 of the Act is mandatory and
just intimation of proposal to adjustment is a mere idle formality. More so when the
petitioner has already filed an objection against the intimation proposing adjustment of
refund from the due of another assessment year, the respondent-Assessing Officer was
bound to dispose of the same and to take a decision on the said objection. Mr. Dutta could
not satisfy this court from any record that any formal order was passed by the Assessing
Officer on the objection to the aforesaid intimation under section 245 of the Act and
specifically recording his satisfaction that the demand of tax in question cannot be
recovered at all and has come to a specific conclusion that the petitioner is not in a
position to pay the amount of demand in question. Mr. Dutta also could not satisfy from
the record that any specific order was passed on the application of the petitioner under
section 220(6) of the Act either rejecting or accepting the same before taking such coercive
action under section 245 of the Act and more so in adjusting the amount more than 20 per
cent. of the demand in question by disregarding and ignoring the aforesaid office
memorandum of the Central Board of Direct Taxes which was binding upon him is bad in
law."
[Emphasis supplied]
43. In such view of the matter, the said judgment cannot aid the Revenue at all.
44. The order of the Hon'ble Supreme Court in the case of Northern Coal Fields
Limited (supra) is clearly an order in the facts of the case. The very opening
words of the said order dismissing the SLP make it clear that the same has
been passed "In the facts of" the case. The facts of the present case being
evidently different from the facts of Northern Coal Fields Limited (supra), the
said order cannot help the Revenue at all.
45. Chemester Food Industry Private Limited (supra) is again a case where the
Assessing Officer had found that grant of stay was not permissible. Such is not
the case here.
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46. In Gouri Sankar Awasthi (supra), an Hon'ble Division Bench of this Court
had declined to interfere with an order of refusal to stay the demand by the
assessing officer. It was observed that recovery could not be stopped merely
because an appeal had been preferred. The same is also of no avail to the
respondent in the facts of the present case.
47. From the above discussion it is evident that the Revenue has acted in abject
violation of the law governing adjustments under Section 245 of the 1961 Act.
The appeal filed by the petitioner is yet to be disposed of despite passage of
more than four years. That being so the Respondent Revenue Authorities are
directed to refund the amounts adjusted in excess of 20% of the disputed
demand pertaining to assessment year 2018-19 as informed to the petitioner
by the intimation dated November 11, 2023 (at page 164 of the writ petition)
within a period of eight weeks from the date of communication of this order. It
is clarified that for the purpose of calculating the amount adjusted in excess of
20% of the disputed demand for the assessment year 2018-19, the amounts
adjusted by the intimation dated October 25, 2022 shall not be taken into
consideration. This clarification is being issued since the adjustment made on
October 25, 2022 has not been interfered with on the ground of delay as
already indicated hereinabove. Further, since the petitioner has approached
this Court after about two years from the date of adjustment on November 11,
2023 therefore, the petitioner is not entitled to any interest on the amounts
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that may be determined by the Revenue to have been adjusted in excess of 20%
of the disputed demand as indicated hereinabove.
48. The relevant Commissioner (Appeals) is also requested to dispose of the appeal
filed by the petitioner expeditiously and positively within a period of two
months from date. It is further clarified that the direction for refund made
hereinabove, shall be subject to the ultimate decision taken in the pending
appeal.
49. WPO 780 of 2025 stands disposed of with the above observations. No costs.
50. Urgent photostat certified copy of this order, if applied for, be supplied to the
parties on urgent basis after completion of necessary formalities.
(Om Narayan Rai, J.)
