TMI Blog2016 (8) TMI 425X X X X Extracts X X X X X X X X Extracts X X X X ..... ner has full period of three years from the date of the order to take the same into suo motu revision. Surely, the department cannot withhold the refund arising out an order of assessment for such full period of three years without any reason. The period of limitation for taking an order in revision cannot be related to the right of the assessee to seek refund arising out of an order of assessment. Such right can be curtailed in terms of Section 39 of the VAT Act by withholding the refund in the interest of revenue. - Unless such order is passed, the refund cannot be automatically withheld. In facts of the case, looking to the considerable revenue implications involved, at the same time, on the basis of materials produced by the respondents on record, we direct that the respondents shall release the refund of ₹ 2 crores latest by 31.08.2016. For the remaining amount, the authority referred to in sub section (1) of Section 39 shall, if wishes to withhold such amount beyond 30.09.2016, grant hearing to the petitioner before passing appropriate order in this respect. - Decided partly in favor of petitioner. - SPECIAL CIVIL APPLICATION NO. 7176 of 2016 With SPECIAL CIVIL AP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to reply to such notice. If the petitioner does not have such documents for whatever reason, it is always open for the petitioner to so state before the authority. Under the circumstances, this petition does not require any consideration. The petitioner would however, have time upto 31.08.2016 to reply to the said notice. 5. Coming back to Special Civil Application No. 7176 of 2016, however, we cannot countenance the approach of the authority. The authority has filed two replies to justify withholding of the refund. In first such affidavit dated 23.06.2016, it is stated inter alia that: 9. I say and submit that though the assessment gave rise to a refund of ₹ 2.4 crore the refund payment order has yet not been passed by the authorities for payment of refund. Prior to issuing the RPO (Refund Payment Order) the authorities hereby were incumbent to duly scrutinize every transaction of the petitioner very minutely. The said scrutiny was to be conducted by Assistant Commissioner Flying Squad, Unit-6 (Annexure-2). In light of the departmental instruction dated 03.12.2015, Assistant Commissioner Flying Squad, Unit-6 initiated steps to scrutinize and verify all the documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the transactions of the petitioner are found false or fraudulent with a view to void payment of tax and wrongly availing the benefits of Input Tax Credit. 12. I say and submit that as mentioned herein above though the assessment order gives rise to a refund to the tune of ₹ 2.4 crore a refund payment order has not yet been passed and authorities are within the time limit of exercising the provisions of section 75 of the Gujarat Value Added Tax Act, 2003. 6. In a later affidavit dated 21.07.2016, it is further stated that: 7. The Sales shown by the dealer of Gujarat State does not match with the purchase shown in online return submitted by the Rajasthan dealer which are confirmed by the assessment order of accounting year 2011-12 passed by the Assistant Commissioner of Commercial Tax Circle N, Jaipur (Annexure R1 Copy of the report of the officer, Annexure R2 copy of online returns, R3 copy of Assessment order, Reply from the (Annexure R4) Rajasthan commercial Tax authorities). 8. The details of purchase shown in C form No. 4870199 are false because as per the departmental information received from Rajasthan Commercial Tax Department the said form has been iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thinks just and proper within five years from the date of the order in question. Thus, the Commissioner has full period of three years from the date of the order to take the same into suo motu revision. Surely, the department cannot withhold the refund arising out an order of assessment for such full period of three years without any reason. The period of limitation for taking an order in revision cannot be related to the right of the assessee to seek refund arising out of an order of assessment. Such right can be curtailed in terms of Section 39 of the VAT Act which pertains to power to withhold the refund in certain cases and reads as under: 39 . Power to withhold refund in certain cases. (1) Where an order giving rise to a refund is the subject matter of an appeal or further proceeding or where any other proceeding under this 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. (2) Where a refund is withheld under sub-section (1), the dealer shall be entitled to interest as prov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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