TMI Blog2021 (2) TMI 967X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. The writ applicant is entitled to get the refund of amount. The authorities have no legal justification for withholding the amount, which is otherwise refundable to the writ applicant and the action of the respondent authorities could be said that such withholding of refund is contrary to the provisions of Section 36 of the GVAT Act, 2003. Reliance can be placed in the case of SHILPA INDUSTRIES VERSUS STATE OF GUJARAT [ 2020 (2) TMI 297 - GUJARAT HIGH COURT] where it was held that In the facts of the case, no notice has been issued till date by the respondent authority invoking provisions of Section 8(A)(a) of Section 34 of the VAT Act, 2003. Therefore, in contemplation of invoking such provision for assessment without there being any satisfaction of the prescribed authority that the tax has been evaded etc. by the petitioner, the refund cannot be withheld. The respondents are directed to pay to the writ applicant a sum of ₹ 9,05,318/- together with statutory interest at the rate of 6% p.a. within a period of six weeks from the date of communication of this order - application allowed. - R/SPECIAL CIVIL APPLICATION NO. 11759 of 2020 - - - Dated:- 29-1-2021 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever, the authority coerced the writ applicant to pay the said tax amount of ₹ 9,05.318/- on the spot. Under this circumstances, the writ applicant had issued two cheques amounting to ₹ 5,00,000/- and ₹ 4,05,318/- respectively to the respondents under protest. 4. It is the case of the writ applicant that he was served with notice in Form 301 and notice for imposing penalty in Form 309 as provided under Section 32(4) of the GVAT Act. It is alleged by the writ applicant that the time limit to complete the assessment has already expired. It is further alleged that the respondent no.1 has neither initiated proceedings pursuant to the said notice served in Form 301 and 309, nor passed any assessment order under Sections 32 and 34 of the GVAT Act till date. In this circumstances the writ applicant had sent to respondent authorities either to make assessment finally or to refund the amount. However, the request of the writ applicant has not been processed. Therefore, being aggrieved by the inaction on the part of the respondent authorities, present application is being preferred with aforesaid reliefs. 5. We have heard Mr. H.V. Vora, the learned counsel appearing f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held the refund contrary to the provisions of Section 36 of the VAT Act, 2003. In the facts of the case, the petitioner was compelled to deposit ₹ 83,106/-, pursuant to the inspection of the business premises of the petitioner on 30th January 2013 towards tax, penalty and interest for two assessment years i.e. 2011-2012 and 2012-2013, prior to the assessment of tax penalty or interest payable by the petitioner for the respective years. 7.1. There is no provision in the VAT Act, 2003, whereby the assessee may be compelled to deposit any amount during the course of search or inspection. It appears that the petitioner in his bona fide belief waited for the expiry of the period prescribed under the provisions of Section 34 of the VAT Act, 2003 for the assessment to be made under Subsection (2), (5), (6) or (7) up to 4 years and assessment under sub-Section (8) upto 8 years. 7.2. Subsections 9 and 10 of Section 34 which provides for time limit for completion of assessment read as under : 34. Audit assessment. (9) No assessment under sub sections (2), (5),(6) or (7) shall be made after the expiry of four years from the end of the year in respect of which of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the respondents are not entitled to withhold the refund. 7.6 It would also necessary to consider power to withhold the refund in certain cases as prescribed in Section 39 of the VAT, 2003, which 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 processing or where any other processing 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 subsection (1), the dealer shall be entitled to interest as provided under section 38, if as a result of the appeal or further proceeding he becomes entitled to refund. 7.7. Thus, in view of above provision also the respondents cannot withhold the refund of amount deposited by the petitioner. 7.8. Reliance placed by the respondents on subsection (8A) of Section 34 is also misplaced in the facts of the case as subsection 8A of section 34 is applicable only when, if the prescribed aut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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