9911796707
TMI Blog2013 (1) TMI 799X X X X Extracts X X X X X X X X Extracts X X X X ..... dispute about the purchase tax payable. Admittedly, the petitioner has been paying such tax as per law. There is however, dispute between the petitioner and the respondents with respect to low pressure natural gas which is used as fuel in the boiler during the manufacturing process. 2.2 For the financial year 2003-2004, the Assistant Commissioner of Commercial Tax, Surat passed order of assessment with respect to the petitioner on 31.3.2008 under section 41 of the Gujarat Sales Tax Act, 1969. In such assessment order, the issue with respect to the purchase of low pressure natural gas for fuel was considered by the Assistant Commissioner. The Assistant Commissioner relying on the decision of the Gujarat Sales Tax Tribunal in case of Pandesara Industries held that the petitioner was not required to pay purchase tax on such purchases. He therefore, granted refund of Rs. 5,94,73,484/- along with interest computed at Rs. 2,09,19,788/-. The Assistant Commissioner in his order of assessment itself thus allowed refund of Rs. 8,03,93,272/- to the petitioner. 2.3 On 19.11.2008, the petitioner through its advocate approached the department under a communication seeking refund as per the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he excess paid purchase tax on the ground that against the judgement of Gujarat High Court in case of Ami Pigments, the Government has filed appeal before the Supreme Court. 2.9 This petition is therefore, now confined to the limited request of the petitioner for granting refund along with interest. 3. We have heard learned counsel for the parties for final disposal of the petition. 4. Learned counsel Shri Jigar Shah appearing with Ms. Madhu Jain submitted that the assessment in case of the petitioner for the financial year 2003-2004 was completed way back on 31.3.2008. In this very assessment order, the Assistant Commissioner had provided for refund of principal plus interest, totalling to Rs. 8,03,93,272/-. Such assessment order is not disturbed either by reopening the assessment or by taking the same in revision. It is now not open for the respondents to withhold the refund merely on the ground that the connected issue is pending before the Supreme Court in case of some other assessee. The counsel would highlight that under the provisions of Gujarat Sales Tax Act and in particular section 44 thereof, reassessment would be permissible upto a maximum of eight years that too if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts on record, we find that stand of the respondents is wholly unsustainable. We say so for various reasons which shall be set out hereafter. As already noted, the assessment for the financial year 2003-2004 in case of the petitioner was made by the Assessing Officer on 31.3.2008. In such assessment order, the Assistant Commissioner held that the petitioner was entitled to refund of Rs. 5,94,73,484/- being the purchase tax paid on purchase of low pressure natural gas used for fuel. He also held that such refund shall carry interest computed at Rs. 2,09,19,788/-. The assessment order thus provided refund to the petitioner of Rs. 8,03,93,272/-. 7. Such order of the assessment was not carried in appeal. Under section 67 of the Gujarat Sales Tax Act against any such order when no appeal is filed, the Commissioner of his own motion within three years or on application made to him within one year from the date of such order, may call for and examine the record and pass such order thereon as he thinks just and proper. 8. Besides availability of appeal and revision against the order-in-original, the Gujarat Sales Tax Act envisages two situations where the assessment order can be modified. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imply fail to understand how the department can withhold the refund payable to the petitioner arising out of the finalised assessment order which has attained such finality that it is simply not possible to modify the same under any of the provisions contained in the Gujarat Sales Tax Act noticed by us, merely on the ground that the legal issue regarding chargeability of purchase tax on purchase of low pressure natural gas used for fuel is pending before the Supreme Court. 11. To put it differently, whatever be the outcome of such litigation between the department and Ami Pigments in which the validity of the judgement of the Gujarat High Court is in question, such decision could simply be not made applicable to the petitioner for the financial year 2003-2004. In this respect learned counsel for the petitioner rightly pointed out the decision of Calcutta High Court in case of Simplex Concrete Piles (India) ltd v. Deputy Commissioner of Income Tax and ors. reported in 262 ITR 605. In the said decision, Division Bench of Calcutta High Court held that even if by virtue of subsequent decision of the Supreme Court, assessment previously closed could be reopened, notice for such reopeni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ." 12. To our mind, the above stand is wholly unsustainable in law. The decision of Supreme Court even if ultimately is in favour of the department, insofar as the petitioner's case for financial year 2003-2004 is concerned, same simply cannot be made applicable in absence of any pending proceeding or even without any possibility to modify the assessment in any manner. As already concluded by us, it is not possible by the department either to reopen the assessment for the said financial year due to passage of time nor it is possible to revise the said order at this distant point of time or rectify the same under section 72 of the Gujarat Sales Tax Act. 13. Learned AGP did try to support the order on the basis of section 52A of the Gujarat Sales Tax Act. Section 52A pertains to power to withhold refund in certain cases and reads as under : "52A Power to withhold refund in certain cases (1) Where an order giving rise to a refund is the subject matter of an appeal or further proceeding or where any other proceeding under this Act is pending and the authority competent to grant such refund is of the opinion that the grant of the refund is likely to adversely affect the revenue, such ..... X X X X Extracts X X X X X X X X Extracts X X X X
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