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NJ DEVANI BUILDERS PRIVATE LIMITED AND 1 Versus DEPUTY COMMISSIONER OF COMMERCIAL TAX (APPEAL - 1) AND 1

2016 (7) TMI 286 - GUJARAT HIGH COURT

Refund due to opting composition scheme for works contract - department treated the same as Refund of input tax credit - business of civil construction work. - refund was not released on the premise that the same would be carried forward in the next year and would be adjusted towards the petitioner's tax liability. - Gujarat Value Added Tax Act - Held that:- These refunds were released by the Assessing Officer while passing order of assessment for the assessment year 2008-09. Simply because such .....

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us error in treating such refund as input tax credit claimed by the petitioner. It is true that the petitioner has opted for composition of tax and, in such situation, would not be entitled to claim any input tax credit. - The Deputy Commissioner cannot disturb the refund payable to the petitioner on mere suspicion. - The authority shall hear the petitioner's appeal against short refund and short interest and dispose of the same in accordance with law. - Decided in favor of assessee. - SPECI .....

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hort] claiming refund of ₹ 7.63 lacs (rounded off). According to the petitioner, such refund was not released on the premise that the same would be carried forward in the next year and would be adjusted towards the petitioner's tax liability. However, for the assessment year 2007-08 also the petitioner had claimed refund of ₹ 35.15 lacs (rounded off) which was also not granted by the department. Assessments for both the assessment years 2006-07 and 2007-08 became time barred. The .....

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for the assessment year 2008-09. Case of the petitioner is that, in such computer generated assessment order in pre-set format, there was no column for refund for the earlier years. The Assessing Officer, therefore, in his order dated 06.03.2013 showed the refund of ₹ 35,13,883/- against the clause pertaining to net tax credit. He also calculated a sum of ₹ 8,11,642/- as interest payable on such refund. The net refund payable thus became to ₹ 42,65,438/-. However, the petition .....

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the petitioner, the Commissioner issued impugned notice dated 10.02.2016 seeking to take the assessment order of the year 2008-09 in suo motu revision denying refund of ₹ 42,65,438/- to the petitioner on the ground that in the order of assessment dated 06.03.2016, the petitioner has been granted tax credit of ₹ 35,13,383/- for the assessment year 2007-08 which was not payable to the petitioner since the petitioner was covered by the composition tax regime and, therefore, was not enti .....

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d assessment proforma would not accept any entry of refund for the past assessment years, the Assessing Officer, therefore, for convenience had shown such refund against the entry of input tax credit. Counsel relied on the additional affidavit filed on behalf of the petitioner on 28.06.2016 in which these aspects have been further clarified. 4. On the other hand, learned AGP relied on further affidavit in reply dated 01.07.2016 filed by the Deputy Commissioner of Commercial Tax, in which, he has .....

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eased. These refunds were released by the Assessing Officer while passing order of assessment for the assessment year 2008-09. Simply because such assessment orders are computer generated and would have specific boxes containing specific details and which did not have any entry for refund for past assessment years, he was compelled to show the sum of ₹ 35,13,883/- against the entry of net tax credit. This method adopted by the Assessing Officer would not change the true character of the sa .....

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certain factual aspects on record and to assist the Hon'ble Court in the aforesaid petition. I state and submit that for the year 2006-07 there was an amount of refund due to the extent of ₹ 7,63,106/- on account of tax paid being more than tax payable. However, since the Return Form which is to be filed online did not contain any such column for the refund of tax and therefore, left with no other alternative, this amount was indicated in the column of the tax credit carried forward to .....

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e Court seeking refund. Pursuant to the orders passed by this Hon'ble Court since the time limit for the completion of the Assessment Year 2007-08 had already expired, the Respondent granted such refund in the Assessment year of 2008-09 as per the Annexure D. It is relevant to note that the said Assessment Order also clearly denotes that there is no such column in the Return Form to be filed online or even the Assessment Order providing for the mentioning of refund of previous year. Accordin .....

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error in treating such refund as input tax credit claimed by the petitioner. It is true that the petitioner has opted for composition of tax and, in such situation, would not be entitled to claim any input tax credit. However, when the petitioner had not in fact claimed any such credit and the sum of ₹ 35,13,883/- shown in the order of assessment for the assessment year 2008-09 was in fact the refund of the earlier years, the very basis for the Deputy Commissioner to issue impugned notice .....

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query was raised and on that basis revision notice was issued. It is humbly submitted that on scrutiny it was found that dealer obtained for lumpsum tax scheme for 2008-09. during the scrutiny of VAT report revealed that goods worth of ₹ 5,77,10,250/- was held in stock as work in progress/stock eligible for ITC at the beginning of the year and dealer has availed LTC on the said goods in the previous year 2007-08. It was observed that dealer derived the tax liability on the value of goods u .....

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