TMI Blog2013 (1) TMI 799X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to the respondents to release refund of ₹ 8,03,93,272/- along with interest applicable. 2. The petition arises in the following factual background : 2.1 The petitioner is a company registered under the companies Act and is engaged in the business of manufacturing and selling fertilisers within and outside the State of Gujarat. The principal product of the petitioner is urea. For its manufacturing process, the petitioner purchases natural gas from the gas companies. The petitioner also purchases other petroleum products including low pressure natural gas which is used as fuel. Insofar as the petitioner purchases high pressure natural gas, there is no 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed in the matter of Ami Pigments to record that the purchase tax is to be assessed on the purchase of natural gas used as inflammable. 2.7 When the petition was initially filed the petitioner had challenged this very notice dated 4.2.2012 on various grounds and had further prayed for refund of the amount of ₹ 8,03,93,272/- as per the order of the Assistant Commissioner finalising the assessment for the financial year 2003-2004. 2.8 During the pendency of this petition, the respondents under order dated 14.3.2012 withdrew the notice dated 4.2.2012 for reassessment. Simultaneously, however, in the said order the Assistant Commissioner rejected the request of the petitioner for refund of the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n not having attained finality with respect to liability of the purchaser to pay purchase tax on low pressure natural gas used for fuel, the department had withheld the refund exercising power under section 52A of the Gujarat Sales Tax Act which is parimateria to section 39 of the Gujarat Value Added Tax Act, 2003. She further submitted that if ultimately the Supreme Court reversed the judgement of the Gujarat High Court, difficulty in recovering the said amount already released in favour of the petitioner would arise. Therefore, to protect the interest of the Revenue, the Assistant Commissioner passed said order dated 14.3.2012. 6. Having thus heard learned counsel for the parties and having perused the documents 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 ₹ 5,94,73,484/- being the purchase tax paid on purchase of low pressure natural gas u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thdrawn. Today there is no notice of reassessment in operation. By now the maximum possible time limit of eight years for reassessment is also over. Therefore, without going into the question whether in the present case when the petitioner had made full disclosures, the department can avail of extended period of limitation for reassessment of eight years and whether with introduction of the Gujarat Value Added Tax Act, 2003, which prescribes a uniform time limit of five years for reassessment in all cases, irrespective of concealment or other-wise, the admitted position is that it is now not possible for the department to take the case of the petitioner for the financial year 2003-2004 for reassessment. 10. In such scenario, we simply 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-assessment. If the said order is passed, in that case no refund amount is required to be paid but as stated hereinabove, in order to prevent unnecessary legal proceedings only, reassessment notice is withdrawn and no proceeding is initiated. Against the judgement dated 26/02/2010 passed by the High Court, the Gujarat Government has filed the appeal in the Hon ble Supreme Court to the effect that the judgement passed in the matter of Costal Chemical is applicable to the Gujarat Sales Tax. If the Hon ble Supreme Court passes the order in favour of the State Government, the implications of the same would also be made applicable to your case and the assessment order have to be pass after review process and other legal procedure for refund. 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 reop ..... 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