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TMI Blog2021 (2) TMI 967X X X X Extracts X X X X X X X X Extracts X X X X ..... st u/s. 38 of the GVAT Act, 2003; b Pass any other order(s) as this Hon'ble Court may deem fit and more appropriate in order to grant interim relief to the petitioner; c Any other and further relief deemed just and proper be granted in the interest of justice. d To provide for the cost of this petition" 2. The writ applicant is in the business of reselling of grains, oilseeds etc. and was registered under the provisions of the Gujarat Value Added Tax Act, 2003 (for short, 'the GVAT Act, 2003'). The writ applicant has applied for cancellation of VAT Registration with effect from 12.04.2010. It is the case of the writ applicant that after submitting the application for cancellation of registration, he did not have recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty 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 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 9. In view of the facts and circumstances of the present case, we may refer to and rely on the decision in the case of Shilpa Industries Vs. State of Gujarat [SCA/540/2020], decided on 22.01.2020. We quote the relevant observations as under: "6. Having heard the learned advocates for the respective parties and having gone through the materials on record, we are at pain to pass this order directing the respondents to pay the sum of Rs. 63,843/-as far no rhyme or reason, the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the year in respect of which or part of which the tax is assessable: Provided that where any assessment is required to be made in pursuance of an order of any court or authority, such fresh assessment shall be made at any time within two years from the date of such order: Provided further that in computing the period of limitation for the purpose this section, any period during which assessment proceedings are stayed by an order or injunction of any court or authority shall be excluded." 7.3. Admittedly, the respondents have not passed any order of assessment for the year 2011-2012, raising any demand against the petitioner. Therefore, the respondent authorities cannot retain the balance amount of Rs. 63,843/- (Rs. 83106 Rs. 19263). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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. 8. The stand taken by the respondent No.2 in the affidavit-in-reply is clearly a bureaucratic approach and redtapism, whereby the citizen of this country has to approach this court for getting legitimate refund. It is expected from the State machinery not to harass the citizen of this country in such a manner compelling them to approach to the Highest Court of the State for getting refund amount, which otherwise cannot be withheld for a minute without there being any authority with the respondent. 9. In view of foregoing, the petition succeeds ..... X X X X Extracts X X X X X X X X Extracts X X X X
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