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GANESH SALES CORPORATION & 1 Versus STATE OF GUJARAT & 3

2016 (3) TMI 1074 - GUJARAT HIGH COURT

Seeking direction to disburse the refund along with the interest forthwith in terms of the provisional refund orders - 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.

Held that:- for the purpose of invoking section 39 of the Act, the condition precedents that .....

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, inasmuch as, the order of provisional refund does give rise to a refund. Insofar as the second condition 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 .....

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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 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 withholdin .....

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conferred by section 39 of the GVAT Act are satisfied in the present case. The impugned order, therefore, suffers from lack of jurisdiction and hence, cannot be sustained. Therefore, in the absence of formation of any opinion that the refund is likely to adversely affect the revenue, the question of withholding the refund would not arise. Thus, as none of the requirements for resorting to the power conferred by section 39 of the GVAT Act are satisfied, the impugned order cannot be sustained suff .....

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RABLE MS.JUSTICE HARSHA DEVANI) 1. Rule. Ms. Maithili Mehta, learned Assistant Government Pleader, waives service of notice of rule on behalf of the respondents. Having regard to the controversy involved in the present case, which lies in a very narrow compass and with the consent of the learned advocates for the respective parties, the matter was taken up for final hearing today. 2. By this petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 3. .....

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t 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 avail .....

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copies of the profit and loss account and balance sheet, along with the affidavit of the petitioner to the effect that they would return the amount of refund if it was not found to be in terms of the provisions of the GVAT Act to substantiate the claim of provisional refund. 2.2 The third respondent granted an opportunity of personal hearing to the petitioner, whereupon the petitioner appeared through his advocate and stated that the provisional refund claim should be granted in terms of section .....

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ncellation of registration of one of the dealers from whom the petitioner had purchased the said goods. It is the case of the petitioner that he had remained present before the third respondent and provided all the requisite documents to show that tax on the disputed transactions was duly paid and the registration of the dealer was in existence at the time when the goods were sold to the petitioner. The third respondent, after being satisfied with the documents submitted by the petitioner and af .....

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nancial year. However, since the refund was not disbursed even after the financial year 2014-15 was over, the petitioner vide letter dated 23.4.2015 requested the Assistant Commissioner of Commercial Tax to disburse the refund in terms of the above provisional 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 .....

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nwhile, 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 Commissioner. Certain other additional documents .....

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, having passed an order of provisional refund, there is no provision for review thereof. Under the circumstances, it is not permissible for the third respondent to review the order of provisional refund. It was pointed out that in relation to every dispatch, the corresponding Form No.402 is on record and hence, there is no reason to disbelieve the genuineness of the transactions. It was pointed out that there is no suggestion either in the show cause notice or in the impugned order that grant o .....

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refund is likely to adversely affect the revenue. It was submitted that in the facts of the present case neither is the order of refund subject matter of appeal or further proceedings nor is any other proceeding under the Act pending in relation thereto; nor is there is any suggestion, either in the show cause notice or in the impugned order, that grant of refund would adversely affect the revenue. It was submitted that, therefore, neither of the two conditions precedent are satisfied in the fa .....

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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 availabi .....

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d reliance upon the decision of this court in the case of Kanak Fabrics v. Income Tax Officer, (2013) 359 ITR 447 (Guj.) wherein the court had, in the context of provisions of section 147 of the Income Tax Act, observed that in the absence of any satisfaction having been recorded by the Assessing Officer that income has escaped assessment by reason of failure on the part of the petitioner to disclose fully and truly all material facts necessary for its assessment for the assessment year under co .....

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n-reply, to submit that the whole proceedings are, therefore, without jurisdiction and consequently, the impugned order is bad in law. As regards the alleged irregularities, the attention of the court was invited to the show cause notice dated 22.5.2015, to point out that certain queries have been raised in response to which the petitioner has filed his reply dated 8.6.2015 giving full details in respect of such queries. It was submitted that consequently the objections have been scaled down to .....

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e affidavit-in-reply filed on behalf of the respondents. It was submitted that pursuant to the provisional refund order dated 18.2.2015 and 10.3.2015, a show cause notice was issued on 22.5.2015 calling upon the petitioner to show cause as to why the refund should not be withheld. Such show cause notice was issued in exercise of powers conferred under section 39(1) of the GVAT Act. It was submitted that pursuant thereto, after affording an opportunity of hearing to the petitioner, the impugned o .....

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a 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 o .....

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of (i) appeal, or (ii) further proceeding, or (iii) where any other proceeding under the Act is pending, and the Commissioner is of the opinion that grant of such refund is likely to adversely affect the revenue, he may, after giving the dealer an opportunity of being heard, withhold the refund till such time as he may determine. 6. Thus, for the purpose of invoking section 39 of the Act, the condition precedents that are required to be satisfied are: firstly that there should be an order which .....

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the order of provisional refund does give rise to a refund. Insofar as the second condition precedent is concerned, the learned Assistant Government Pleader, even with the assistance of the concerned officer who was present before the court, 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 conn .....

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f 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. 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 s .....

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