TMI Blog2016 (3) TMI 1074X X X X Extracts X X X X X X X X Extracts X X X X ..... ition precedent is concerned, the respondent was not in a position to point out that any of the three eventualities specified in the section are satisfied. Thus, it is an admitted position that the order of provisional refund is not subject matter of appeal, nor is there any further proceeding in connection therewith, nor is any other proceeding under the Act pending. Therefore, none of the three contingencies constituting the second condition precedent for invoking Section 39 of the GVAT Act is satisfied. Therefore, clearly, the impugned order has been passed without the conditions precedent for exercise of such power being satisfied and therefore, lacks jurisdiction. Under the circumstances, the contention that the petitioner should be relegated to avail of the remedy of appeal under Section 73 of the GVAT Act does not merit acceptance, inasmuch as, it is by now well settled that when an order is without jurisdiction, it is permissible for the aggrieved party to invoke the extraordinary jurisdiction of this court under Article 226 of the Constitution of India. The provisions of section 39 of the GVAT can be invoked provided the circumstances referred to hereinabove exist. If s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the interest forthwith in terms of the provisional refund orders dated 18.2.2015 and 10.3.2015. 2.1 The petitioner is a proprietary concern of Shri Amit Trilokchand Goyal and is, inter-alia, engaged in trading of various products, including cigarettes. The petitioner is a dealer registered under the provisions of 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 petitioner 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 as the same were purchased for the purpose of re-sale in the State of Gujarat and in the course of inter-state trade and commerce. Since the petitioner was not in a position to utilise the entire amount of input tax credit availed on purchase of the goods, he filed a provisional refund claim for ₹ 1,69,68,477/- in terms of the provisions of rule 37 of the Gujarat Value Added Tax Rules, 2006 (hereinafter referred to as the rules ) on 17.11.1994 for the tax period 1.7.2014 to 30.9.2014. It is the case of the petitioner that he had submitted the requisite documents, viz., sales and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al refund orders. 2.4 In response to the above letter dated 23.4.2015, the Assistant Commissioner of Commercial Tax, by a letter dated 27.4.2015, informed the petitioner that the third respondent had directed him not to disburse the amount of refund till further orders. He had also stated that since he did not have jurisdiction over the sanction of refund and the Deputy Commissioner was only the proper officer to sanction and disburse the refund claim, the petitioner should approach the Deputy Commissioner of Commercial Tax for sanctioning the refund. 2.5 Since the third respondent did not disburse the amount of provisional refund claim, the petitioner was continuously following up with the office of the third respondent. In the meanwhile, the third respondent issued a show cause notice dated 22.5.2015 to the petitioner calling upon him to submit various documents in support of the provisional refund claim and fixed the personal hearing on 8.6.2015. Pursuant to the show cause notice dated 22.5.2015, the petitioner, by a letter dated 8.6.2015, submitted various documents as sought for by the third respondent and also provided the information that was sought for by the Deputy C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue, there is even no suggestion that any transaction contrary to law has taken place or that it is likely to adversely affect the revenue. 3.1 The learned counsel submitted that while the authorities have power to withhold refund under section 39 of the GVAT Act, there is no power to suspend. It was pointed out that the impugned order suspends the order of provisional refund without there being any power vested in the respondents to suspend such order. According to the learned counsel, further proceedings would be post an assessment order and hence also, section 39 of the GVAT Act would have no application. It was also contended that the availability of an alternative remedy under the statute is no remedy, as the entire exercise is without jurisdiction, inasmuch as, there is no power vested in the authorities to pass such interim directions which are totally without jurisdiction. It was submitted that assuming for the sake of argument that section 39 of the GVAT Act is applicable; even then, powers thereunder have to be exercised by a higher authority and not the same officer. 3.2 In support of his submissions, the learned counsel placed reliance upon the decision of this cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing an opportunity of hearing to the petitioner, the impugned order withholding the refund has been passed and a copy thereof has been duly served upon the petitioner. Thus, prior to passing the impugned order, due procedure in accordance with law has been followed. It was submitted that the impugned order is an appealable order against which appeal lies to the Joint Commissioner under section 73 of the GVAT Act. Therefore, when there is an efficacious alternative remedy provided under the statute, this petition under Article 226 of the Constitution of India ought not to be entertained as otherwise, the remedy of appeal would become redundant. It was urged that the petitioner has committed serious irregularities in the conduct of his business insofar as compliance with the provisions of the GVAT Act is concerned and that in all likelihood huge recoveries will be required to be made from the petitioner and that the petitioner has no immovable properties in the State of Gujarat and hence it will be difficult to recover the amount sanctioned by way of provisional refund. It was, accordingly, urged that the petition being devoid of any merits deserves to be dismissed. 5. In the abov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e GVAT Act does not merit acceptance, inasmuch as, it is by now well settled that when an order is without jurisdiction, it is permissible for the aggrieved party to invoke the extraordinary jurisdiction of this court under Article 226 of the Constitution of India. 7. Apart from the fact that the basic requirements for invoking powers under section 39 of the GVAT Act are not satisfied, even otherwise the impugned order suffers from various illegalities and is not sustainable. 8. As noticed hereinabove, the provisions of section 39 of the GVAT can be invoked provided the circumstances referred to hereinabove exist. If such circumstances exist, the Commissioner is empowered to withhold the refund provided he is of the opinion that such refund is likely to adversely affect the revenue. Thus, before withholding the refund, the Commissioner is required to form an opinion that the grant of refund is likely to adversely affect the revenue. The fact regarding formation of such opinion, therefore, should be reflected in the order passed under section 39 of the GVAT Act withholding the refund. In this regard, a perusal of the impugned order clearly shows that there is not even a whispe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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