TMI Blog2013 (12) TMI 975X X X X Extracts X X X X X X X X Extracts X X X X ..... provisional refund – Decided against Appellant. - Tax Appeal No. 835 of 2013, Civil Application No. 582 of 2013, Tax Appeal No. 835 of 2013 - - - Dated:- 24-10-2013 - M. R. Shah And Sonia Gokani,JJ. For the Appellant : Mr. Jaymin Gandhi Assit. Government Pleader JUDGMENT (Per : Honourable Mr. Justice M. R. Shah) 1.0. Present Tax Appeal has been preferred by the appellantState of Gujarat through the Commissioner of Commercial Taxes, Ahmedabad against the impugned judgment and order dated 22.1.2013 passed by the learned Gujarat Value Added Tax Tribunal in Second Appeal No.139 of 2011, by which, the learned Tribunal has allowed the said appeal preferred by the respondent herein holding that the respondent dealer shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner of Commercial Taxes in so far as not granting any interest on the provisionally refund i.e. ₹ 2,74,253/, the respondentdealer preferred First Appeal before the Joint Commissioner of Commercial Taxes (Appeals) Ahmedabad and the First Appellate Authority dismissed the said appeal. 2.2. Being aggrieved and dissatisfied with the order passed by the First Appellate Authority, the appellant preferred Second Appeal No. 139 of 2011 before the Tribunal and by impugned judgment and order the learned Tribunal has allowed the said appeal holding that dealer shall be entitled to interest on provisionally granted refund of ₹ 2,74,253/for the period 1.4.2007 to 10.1.2008 @ 6% p.a under Section 38(2) of the Act. 2.3. Being aggrieved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of provisional assessment and therefore, the learned Tribunal has materially erred in holding that dealer shall be entitled to the interest under Section 38(2) of the Act on the amount of provisional refund. 3.2. Making above submissions and relying upon the above decision, it is requested to admit / allow the present Appeal. 4.0. Heard Shri Ganhi, learned Assistant Government Pleader appearing on behalf of the appellant and perused the impugned judgment and order passed by the learned Tribunal. The short question which is posed for consideration of this Court whether a dealer in whose favour provisional assessment order is passed and consequently provisional refund is granted, the dealer shall be entitled to interest on the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y tax, interest, penalty or any other dues under this Act, or under the Central Act. If, as a result of of any order passed under the Act, the amount of such refund is enhanced or reduced, such interest shall be enhanced or reduced accordingly. (2).Where the realization of any amount remains stayed by the order of any Court or authority and such order is subsequently vacated, interest shall be payable also for any period during which such order remained in operation. 4.2. Subsection (1) of Section 38 of the Act provides that where refund of any amount of tax becomes due to the dealer by virtue of an order of assessment under Section 34 (audit assessment), he shall be entitled to receive in addition to the amount of tax, simple intere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection (2) of Section 38 order includes provisional assessment order/ provisional refund order. Under the circumstances, as such learned Tribunal has not committed any error and / or illegality in holding that the dealer shall be entitled to interest at the rate of 6% p.a on the provisional refund i.e. ₹ 2,74,253/. 4.5. Now, so far as reliance placed upon the decision of the Hon ble Supreme Court in the case of Gurudevdatta Vksss Maryadit (supra) is concerned, as such there cannot be any dispute with respect to proposition of law laid down by the Hon ble Supreme Court in the said decision. However, on facts the said decision shall not be of any assistance to the appellant. Provision of Section 38(2) is very clear and it specifica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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