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2016 (5) TMI 221 - HC - VAT and Sales TaxNature of amount deposited - deposited as per order of Tribunal - Whether by way of pre-deposit or payment of tax - Held that:- as per provisions of sub-section (4) of section 73 of the GVAT Act, it appears that while the amount deposited under section 35F of the Central Excise Act, 1944 and section 129E of the Customs Act is by way of deposit pending the appeal, the amount paid under sub-section (4) of section 73 of the GVAT Act appears to be in the nature of payment of tax. However, it is not necessary to enter into any discussion in that regard, inasmuch as, in the present case, the amount deposited by the respondent is not under subsection (4) of section 73 of the GVAT Act, nor has the appellate authority passed any order under the proviso to subsection (4) of section 73 of the GVAT Act. From the language employed in this court orders, it is clear that what the respondent has been directed to pay is by way of pre-deposit and not payment of tax under the orders which were subject matter of challenge before the Tribunal. Therefore, the amount deposited by the respondent being in the nature of pre-deposit, once the Tribunal has allowed the appeals and decided the same in favour of the respondent, the consequence would be automatic and the respondent would be entitled to refund of the amount paid by way of predeposit. Refund of excess amount of tax paid - Section 36 of the GVAT Act - Petitioner submitted that the expression used is “paid” which is distinct from the expression “deposit”. Therefore, section 36 of the GVAT Act would not be applicable to the facts of the present case - Held that:- Section 36 of the GVAT Act provides for refund of excess payment and lays down that subject to the other provisions of the Act and the rules, the Commissioner may refund to a person the amount of tax, penalty and interest, if any, paid by such person in excess of the amount due from him. Provided that, the Commissioner shall first apply such excess towards the recovery of any amount due under the Act or the earlier laws and shall then refund only the balance amount, if any; provided further that no adjustment under the provision shall be made towards a recovery of an amount due that has been stayed by an appellate authority. On a perusal of the provisions of section 36 of the GVAT Act as a whole, there is nothing therein to indicate that the same requires an application to be made prior to refund of any amount by a person. Moreover, what section 36 of the Act contemplates is refund of any amount of tax, penalty and interest paid by a person in excess of the amount due from him. As the amount paid by the respondent is by way of a pre-deposit pursuant to the above order passed by this court, which in terms of the said order, would enure till the final disposal of the appeals. Therefore, such amount cannot be termed as an amount of tax paid as envisaged under sub-section (1) of section 36 of the GVAT Act. The amount deposited by the respondent being in the nature of pre-deposit and not payment of tax under the provisions of the Sales Tax Act, the amount deposited by it is bound to be refunded in view of the fact that the appeal has been allowed by the Tribunal. Whether the Tribunal acted within the bounds of its jurisdiction in issuing directions of the refund of amount deposited by the respondent by way of pre-deposit pursuant to the above order passed by this court - Held that:- as per provisions of GVAT Act, it is evident that there is no provision therein for return of the amount deposited by way of pre-deposit during the pendency of the appeal. A perusal of the Gujarat Value Added Tax Tribunal Regulation, 2008 shows that the same contains provisions which are in pari materia to that of the Gujarat Primary Education Tribunal (Procedure) Order, 1987. Regulation 44 bears the heading “Tribunal to follow provisions of Civil Procedure Code in the matters not provided in these regulations” and postulates that the Tribunal shall, in any matter not provided for in these regulations, follow the procedure, as far as it is applicable, laid down in the Code of Civil Procedure, 1908 as may be amended from time to time. Having regard to the similarity of the provisions under two regulations, the court is of the view that the decision of this court in the case of Girishchandra R. Bhatt v. Dineshbhai V. Sanghvi, Principal and others [1995 (12) TMI 388 - GUJARAT HIGH COURT] would be squarely applicable to the facts of the present case. Propriety of Tribunal in entertaining the applications - appeal filed by the petitioner was pending before this court - return of the amount of pre-deposit - Held that:- refund of the amount of pre-deposit is consequential of the orders of the Tribunal and the same has no connection with the appeals preferred by the petitioner before this court. As rightly submitted by the learned counsel for the respondent, even if the orders of the Tribunal were to be stayed, the assessment orders would not spring into operation entitling the petitioner to recover the amount under the same. The impugned order passed by the Tribunal, therefore, cannot, in any manner, be said to come in conflict with any order that may be passed by the High Court in the appeals. Having regard to distinct nature of the proceedings before the High Court and before the Tribunal, it cannot be said that the order passed by the Tribunal lacks propriety. - Decided against the revenue.
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