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TMI Blog2020 (7) TMI 676X X X X Extracts X X X X X X X X Extracts X X X X ..... ha L. Shah, learned Government Pleader for the State respondent. 2. By means of this petition under Article 226 of the Constitution of India, the petitioner has prayed for quashing and setting aside order dated 18.10.2019 passed by the respondent No.2 - State Sales Tax Officer withholding the refund of Rs. 15 lakhs paid as pre-deposit. Further prayer is to direct the respondents to forthwith refund the said amount along with 18% interest from the date of predeposit. 3. The brief facts of the case are that with respect to certain purchase of raw material upon payment of Gujarat Value Added Tax and despite submission of the relevant forms, the revenue did not accept the same and assessed the tax treating that once the goods travel outside t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lding the pre-deposit. 6. However, having considered the submissions and having perused the statutory provisions, we are of the view that this petition deserves to be allowed on the sole ground that the impugned order was passed by the Sales Tax Officer, who had no authority to withhold the amount under Section 39 of the VAT Act. For ready reference Section 39 of the VAT Act is reproduced herein below: "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 proceedings 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or not. As per the impugned order, till that date, no appeal had been filed before the Supreme Court. Further the petitioner had succeeded before the Tribunal in August, 2015. The Department took two years to file appeal before the High Court which was dismissed in October, 2018. Thereafter, much later the Department has simply submitted an appeal before Supreme Court on 05.03.2020 and Dairy No.9032 of 2020 was allotted and till date no further progress has been made in the said appeal. Admittedly, the Commissioner has not exercised the powers. Thus, we are of the view that the refund should forthwith be made to the petitioner along with admissible interest permissible under law from the date of deposit till the date of actual payment. 10. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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