A N SHAIKH Vs. SURESH B JAIN

JUDGEMENT

(1.) WE find no substance in this appeal. The learned single judge has found that the officer has acted in a manner not warranted by the statutory provision, viz., S. 245 of the IT Act. Sec. 245, in our opinion, does not permit any construction other than the one taken by the lower Court and, in our opinion, the concession made by Mr. Devadhar before the single judge was absolutely in accordance with the statutory provision. The intimation given in the assessment order for 1983 84 that the tax liability of the respondent (original petitioner) came to Rs. 7,47,732 and that the amount of refund for the previous asst. year 1982 83 is adjusted against the said liability does not amount to intimation in writing as contemplated by S. 245. Sec. 245 clearly requires a previous intimation of the proposed action for adjustment and not a simultaneous intimation. That the Department can argue in this manner shows the length to which the Department can go in its perverse interpretation of the statutory provision.

(2.) MR . Dhanuka has addressed us on the equities. To a certain extent, he is right. If the IT Department had revealed itself in other proceedings to be conscious of the equities in favour of the taxpayers, we may have considered giving a direction for deposit of the amount in Court and certain time within which the requirement of S. 245 could have been complied with. However, Tax Benches and other judges dealing with tax matters have been repeatedly told by counsel appearing for the Tax Commissioner that there is no equity, no reason and no logic in the law of income tax and the rights and obligations of the Department and the assessee are to be governed by the strict letter of the law. Those who live by the strict letter of the law must also occasionally suffer by that letter of the law. We have no material except Mr. Dhanuka's bare averment that this amount will not be recovered from the respondent assessee if refund is made. If that be so, the blame must squarely rest on the officer who has ignored the clear provisions of S. 245 and acted in a manner contrary thereto. He could have complied with the statutory requirement after his attention was drawn to the illegality of his order (impugned in the writ petition) but failed to do the needful and has persisted in justifying the correctness of his action.

(3.) IN this view of the matter, the appeal is to stand summarily dismissed.