JUDGMENT
N.K. Jain, J.
1. The petitioners are aggrieved by the order dated January 24, 1996 (annexure C/3), passed by respondent No. 2–the Deputy Commissioner of Income-tax, Circle Khandwa, whereby the petitioners-assessees have been informed that the amount of refund found due to them for the assessment year 1991-92, vide order dated November 1, 1995, has been set off against the sum remaining payable by the petitioners towards the assessment for the assessment year 1982-83.
2. Section 245 of the Income-tax Act, 1961, provides for such a set-off. It thus reads as follows :
“245. Where, under any of the provisions of this Act, a refund is found to be due to any person, the Assessing Officer, Deputy Commissioner (Appeals), Commissioner (Appeals) or Chief Commissioner or Commissioner, as the case may be, may in lieu of payment of the refund, set off the amount to be refunded or any part of that amount, against the sum, if any, remaining payable under this Act by the person to whom the refund is due, after giving an intimation in writing to such person of the action proposed to be taken under this section.”
A bare reading of Section 245 would show that action for set off can be taken only after giving an intimation in writing to such person of the action proposed to be taken under this section. Admittedly, in the instant case, no such prior intimation was given to the petitioner about the proposed action to be taken under Section 245. Order annexure C/3 was passed straightway intimating the petitioner about the action for set off taken by the assessing authority. No prior intimation of the proposed action was, however, given to the petitioner.
3. This court in Shiv Narain Shivhare v. Asst. CIT [1996] 222 ITR 620, has held (headnote) :
“Held, that no notice as required under Section 154(3) as well as under Section 245 of the Income-tax Act, 1961, were served on the petitioner. The income-tax authorities had to refund the amount due forthwith. If they wanted to set-off the refund it was open to them to proceed in accordance with law. The petitioner was also entitled to interest for the illegally withheld amount according to law.”
4. The impugned order is contrary to the mandate of Section 245 and is liable to be quashed. Accordingly, I allow this petition and quash the order annexure C/3. The assessing authority shall, however, be free to initiate fresh proceedings for set-off in conformity with the provision of Section 245 of the Income-tax Act and keeping in view the observations made hereinbefore. There shall be no order as to costs of this petition.