Subscription   Feedback   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Articles Highlights TMI Notes SMS News Newsletters Calendar Imp. Links Database Experts Contact us More....
Extracts
Home List
← Previous Next →

STATE OF GUJARAT Versus GANESH SALES CORPORATION

2016 (5) TMI 3 - GUJARAT HIGH COURT

Refund of un-utilized input tax credit - Review and Revision u/s 75 of the GVAT Act - writ petition - remedy of appeal under section 73 of the GVAT Act - earlier the court had vacated the order to withheld the refund u/s 39 - revenue contended that direction to disburse the refund adversely affects the State Government - Held that:- apart from the fact that this is a submission on the merits of the main petition, it is a matter of record that in the order dated 3.7.2015 made under section 39(1) .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

after the exercise of due diligence could not be produced on record has been produced, nor has any error apparent on the face of the record been shown. For the reasons recorded hereinabove, no other sufficient reason for exercise of review jurisdiction can be stated to have been made out. In the absence of any of ingredients for invoking powers of review as contemplated under rule 1 of Order XLVII of the Code of Civil Procedure being satisfied, the applicant is not entitled to any of the relief .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

eview of the judgment and order dated 8.3.2016 passed by this court in Special Civil Application No.10966 of 2015. 2. It is the case of the applicant, as averred in the application, that the respondent herein had presented the captioned petition challenging the order dated 3.7.2015 passed by the Deputy Commissioner of Commercial Tax, Range 13, Nadiad and had prayed for disbursement of refund along with interest forthwith in terms of the provisional refund orders dated 18.2.2015 and 10.3.2015. It .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tate 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 ₹ 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 go .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

015 directed the Assistant Commissioner to sanction the provisional refund and, accordingly, the respondent approached the Assistant Commissioner of Commercial Tax, Nadiad to disburse the refund amount in the light of the orders dated 18.2.2015 and 10.3.2015. In the meanwhile, a show cause notice dated 22.5.2015 was issued calling upon the respondent to produce supportive documents with respect to its claim of provisional refund pursuant to which, the respondent produced the relevant documents o .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

T Act have been issued to the respondent for reviewing and recalling the refund sanctioning orders dated 18.2.2015 and 10.3.2015 and that this court, by not considering the same, has directed the authorities to pay the claim of refund with respect of the amount of ₹ 1,69,68,477/-. Being aggrieved by the directions issued by this court to forthwith disburse refund along with interest to the original petitioner in terms of the provisional refund orders dated 18.2.2015 and 10.3.2015 on the gr .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

10.3.2015 in revision, and that exercise of such power was well within the period of limitation prescribed therefor. It was submitted that if, pursuant to the directions issued by this court, the amount payable 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 respe .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ection 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 and he had, therefore, exercised powers under section 39(1) of the GVAT Act. It was contende .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

mount as claimed by the original petitioner as provisional refund as it would affect the statutory right of the State Government of resorting to the remedy of revision which has already been exercised by the concerned authority. It was reiterated that the order dated 8.3.2016 renders the statutory remedy available to the applicants redundant by giving directions to pay refund of the amount which the respondent is not entitled. 4.1 In support of her submissions, the learned Assistant Government P .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

was submitted that in the facts of the present case, there was a misconception of fact, inasmuch as, the proceedings initiated under section 75 of the GVAT Act had not been taken into consideration and hence, the present case falls within the ambit of the review jurisdiction of this court as contemplated under Order 47 rule 1 of the Code. It was, accordingly, urged that the application deserves to be allowed and that the order dated 8.3.2016 passed by this court is required to be modified to the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 c .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

of the provisional refund orders dated 18.2.2015 and 10.3.2015. This court, after considering the submissions advanced by the learned counsel for the respective parties, had, after considering the material on record, found that the ingredients of section 39 of the GVAT Act for resorting to the power of withholding the refund were not satisfied in the present case. The court, therefore, set aside the order passed under section 39 of the GVAT Act and directed the applicant herein (original respon .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

case, the record reveals that the captioned writ petition was heard from time to time, and by an order dated 29.2.2016, the matter was adjourned to 2.3.2016 for dictation of the judgment. It appears that while the court was in the midst of hearing of the petition, a notice came to be issued under section 75 of the GVAT for taking the refund sanctioning orders dated 18.2.2015 and 10.3.2015 in revision. It may be noted that the Deputy Commissioner of Commercial Tax, Nadiad had, as late as on 23.2. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

iled, it is evident that no action had been taken for invoking the revisional jurisdiction as otherwise such fact would have been mentioned therein. In fact, even thereafter, no fact as regards invocation of powers under section 75 of the GVAT Act had been brought on record at any point of time, when the matter was heard by the court or even at the date when the judgment came to be dictated, either in writing or even orally. Except for the bald and vague averment made in the further affidavit da .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 r .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the date of the order which is sought to be taken in revision, the same does not mean that for a period of three years from the date of such order the party cannot seek implementation of such order simply because the statute provides for taking such order in revision under section 75 of the GVAT Act. In the present case what clearly emerges is that during the course of hearing when it appeared that the order of withholding the refund is not likely to be sustained, the concerned authority under t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

he bare assertion that proceedings have been initiated under section 75 of the GVAT Act, till date no document in support of such assertion has been placed on record. 9. It may be noted that what was subject-matter of challenge in the captioned petition was the order passed under section 39 of the GVAT Act seeking to withhold the provisional refund which was granted in favour of the original petitioner. The court set aside the order on the ground that the necessary ingredients for invoking power .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t 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 e .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

r 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 writ petition filed before this court and with a view to render the same futile. The record of the case reveals that notice was issued in the captioned petition on 9.7.2015 and the matter was adjourned from time to time. The Commissioner of Commercial Tax and the Deputy Commissioner of Commercial Tax were respondents No.2 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

regards the contention that the respondent should be relegated to avail of the remedy of appeal under section 73 of the GVAT Act, such contention was also raised at the time of hearing of the captioned petition and has been duly dealt with in paragraph 6 of the order dated 8.3.2016 and hence, if the applicant is aggrieved thereby, it has to challenge the same before the higher forum. 12. It has also been submitted that the Deputy Collector was also of the opinion that due to fraudulent and false .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 

what is new what is new
  ↓     bird's eye view     ↓  


|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version