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2016 (8) TMI 425 - HC - VAT and Sales TaxWithholding of refund - Assessing Authority held that the petitioner is entitled to refund - revenue stated that mere passing of the order of assessment resulting into refund, would not be sufficient for the assessee to claim such refund and a separate order of refund has to be passed. - power to revise of the order - period fo limitation to revise the order has not expired - Held that: - In addition to the order of assessment which results into refund being payable to the assessee, refund order has to be separately passed. If the order of assessment results into refund, the assessee would be entitled to receive the same, of course after due verification and passing through other legal processes. Refund allowed. Held that: - we do not find any provision where in addition to the order of assessment which results into refund being payable to the assessee, refund order has to be separately passed. If the order of assessment results into refund, the assessee would be entitled to receive the same, of course after due verification and passing through other legal processes. The Commissioner has full period of three years from the date of the order to take the same into suo motu revision. Surely, the department cannot withhold the refund arising out an order of assessment for such full period of three years without any reason. The period of limitation for taking an order in revision cannot be related to the right of the assessee to seek refund arising out of an order of assessment. Such right can be curtailed in terms of Section 39 of the VAT Act by withholding the refund in the interest of revenue. - Unless such order is passed, the refund cannot be automatically withheld. In facts of the case, looking to the considerable revenue implications involved, at the same time, on the basis of materials produced by the respondents on record, we direct that the respondents shall release the refund of ₹ 2 crores latest by 31.08.2016. For the remaining amount, the authority referred to in sub section (1) of Section 39 shall, if wishes to withhold such amount beyond 30.09.2016, grant hearing to the petitioner before passing appropriate order in this respect. - Decided partly in favor of petitioner.
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