9911796707
TMI Blog2016 (5) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... the Gujarat Value Added Tax Act, 2003 (hereinafter referred to as the "GVAT Act") as well as under the Central Sales Tax Act, 1956. The respondent purchased cigarettes of various brands from the State of Gujarat and availed input tax credit in terms of section 11(3) of the GVAT Act and such cigarettes were purchased for the purpose of resale in the State of Gujarat and in the course of inter-state trade and commerce as well as for re-sale of the same within the State of Gujarat. That it was the case of the respondent that it was unable to utilise the entire amount of input tax credit availed on purchase of the cigarettes had, therefore, filed a provisional refund claim for Rs. 1,69,68,477/- on 17.11.2014 for the assessment period 1.7.2014 to 30.9.2014. It was the case of the respondent that he had submitted the requisite documents to show that the sales and the purchase of the goods and further transactions of inter-state nature were genuine. The concerned authorities had granted personal hearing to the respondent and by an order dated 18.2.2015, sanctioned the claim of provisional refund of Rs. 1,52,42,129/- for the assessment period 1.7.2014 to 30.9.2014, under section 37 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le under the refund sanctioning orders is paid to the respondent, the exercise of powers under section 75 of the GVAT Act would be rendered nugatory, inasmuch as, the orders dated 18.2.2015 and 10.3.2015 would stand implemented by then. It was submitted that the issue involved being in respect of disputed question of fact qua the genuineness of the interstate transactions of the respondent, the appropriate efficacious remedy would be relegating the respondent for availing the statutory remedy under section 73 of the GVAT Act. It was submitted that during the course of regular hearing of the writ petition, the Department had clearly stated in the affidavit dated 23.2.2016 that, if this court allows the present petition then it would render the remedy of provision of revision under section 75 redundant at the very threshold. It was urged that the provisional refund order issued under section 37 of the GVAT Act for sanctioning the refund is an order giving rise to a refund, which was subject to proceedings of further investigation. The Deputy Commissioner was also of the opinion that due to fraudulent and false transactions, the revenue of the State is likely to be adversely affected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondent submitted that from the submissions advanced by the learned Assistant Government Pleader, it appears that the only contention is that the order passed by this court hurts the applicants. It was submitted that the subsequent events referred to in the decision of the Supreme Court would not include the subsequent action taken by the applicants herein after the hearing of the petition. It was argued that the mere fact that the order passed by this court adversely affects the applicants is no ground for review thereof. It was, accordingly, urged that the application being devoid of merits, deserves to be dismissed. 6. This court has considered the submissions advanced by the learned counsel for the respective parties and has perused the decision on which reliance has been placed by the learned Assistant Government Pleader. 7. The facts, as emerging from the record, are that the respondent (original petitioner) had by filing the captioned petition challenging the order dated 3.7.2015 passed by the Deputy Commissioner of Commercial Tax, Range 13, Nadiad under section 39 of the GVAT Act and seeking a direction to him to disburse the refund along with interest forthwith in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated, either in writing or even orally. Except for the bald and vague averment made in the further affidavit dated 23.3.2016, that if this court allows the present petition it would render the remedy of provision of revision under section 75 redundant, there is not even a whisper as regards the invocation of powers under section 75 of the GVAT Act. If the contention raised in the further affidavit that in case relief is granted in favour of the petitioner the same would render the provisions of section 75 of the GVAT Act redundant, is considered on a standalone basis divesting it of the subsequent events which have been brought on record in this application, it appears to be the case of the applicant that when an order sanctioning refund is passed by the concerned authority and the same is not implemented, then even if the dealer comes to the court seeking implementation of such order, the court should not exercise jurisdiction under Article 226 of the Constitution of India and grant relief to the petitioner simply because under the GVAT Act the Commissioner is empowered to take such order in revision within a period of three years from the date of the order. In other words, for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contention that the court had proceeded on a misconception of law or fact at the time of passing the order dated 8.3.2016 does not merit acceptance. Accordingly, the decision of the Supreme Court in the case of Board of Control for Cricket in India v. Netaji Cricket Club (supra) on which reliance has been placed by the learned Assistant Government Pleader for the proposition that the words "sufficient cause" in Order 47 Rule 1 of the Code are wide enough to include a misconception of fact or law by a court or even an advocate, would not be applicable to the facts of the present case. 10. Insofar as the submission that the direction to disburse the refund adversely affects the State Government as the orders sanctioning refund have been taken in revision is concerned, as noted hereinabove, as on the date when the order dated 8.3.2016 came to be passed no such fact had been brought on record. Besides, if the applicant is aggrieved by the order passed by this court, the remedy lies elsewhere. Moreover, for the reasons that follow it is evident that the invocation of powers under section 75 of the GVAT Act is by way of an afterthought with a view to thwart the proceedings of the wr ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
