2015 (11) TMI 217 - HC - VAT and Sales Tax

Denial of Refund claim - Order of attachment - Seizure of bank accounts - on-line application for claiming provisional refund not filed - Held that - With a view to ensure that no prejudice is caused to the case of either party by any observation made by this court at a stage when the assessment proceedings are pending before the competent authority, this court is not inclined to enter into any discussion on the merits of the case. Suffice it to state that having regard to the short duration that the petitioner has been in this business in the State of Gujarat; the material gathered by the respondents (the veracity and evidentiary value of which is yet to be assessed); as well as considering the fact that the petitioner does not have any immovable property in the State of Gujarat, to secure the interest of the Government revenue, the court is of the view that the interests of justice would best be served if while permitting the attachment to continue, the respondent authorities are directed to frame the assessment within a stipulated time frame. Under the circumstances, the court is not inclined to interfere with the provisional attachment made by the respondent at this stage. - Petition disposed of.

Issues Involved:
1. Non-disposal of the appeal against the rejection of the refund application.
2. Delay in processing refund applications.
3. Legality of the provisional attachment of the petitioner's bank accounts.

Issue-wise Detailed Analysis:

1. Non-disposal of the Appeal Against the Rejection of the Refund Application:
The petitioner challenged the order dated 9.5.2014 by the Deputy Commercial Tax Commissioner rejecting their refund application. The petitioner appealed against this rejection, but the appeal was not disposed of promptly. The court noted that the appeal was concluded on 14.8.2014 and signed by the Joint Commissioner, but the order was not delivered to the petitioner and was transferred to another division. Eventually, the respondents agreed to communicate the order to the petitioner, rendering this issue resolved.

2. Delay in Processing Refund Applications:
The petitioner argued that their refund applications were not being processed within the statutory time limits. The petitioner had filed multiple refund applications for different quarters, but there was no response from the respondents. The court noted the respondents' assurance that the refund applications would be processed and decided within four weeks from the date of the order. This assurance addressed the petitioner's grievance regarding the delay.

3. Legality of the Provisional Attachment of the Petitioner's Bank Accounts:
The petitioner contended that the provisional attachment of their bank accounts was unlawful, arguing that no written order justifying the attachment was made and that the attachment was executed hastily without proper assessment. The petitioner cited several judgments to support their claim that such drastic measures should be taken with extreme caution and sufficient justification.

The respondents, however, argued that the petitioner's transactions were suspicious and potentially fraudulent, warranting the attachment to protect government revenue. They pointed out that the petitioner had only recently commenced business in Gujarat, had no immovable property in the state, and that investigations revealed discrepancies in the transactions.

The court referred to Section 45 of the GVAT Act, which allows for provisional attachment to protect government revenue during assessment proceedings. The court noted that such power is extraordinary and must be exercised with due care. The court acknowledged the respondents' claim that subjective satisfaction for the attachment was recorded and that the attachment was necessary given the petitioner's short business duration in Gujarat and the lack of immovable property.

Ultimately, the court decided not to interfere with the provisional attachment at this stage but directed the respondents to complete the assessment proceedings within five weeks, allowing the petitioner to approach the court for lifting the attachment if the proceedings were not concluded within the stipulated time.

Conclusion:
The court disposed of the petition with specific directions:
1. The respondents must communicate the order on the first appeal against the refund rejection.
2. The refund applications should be processed and decided within four weeks.
3. The provisional assessment proceedings must be concluded within five weeks, with the petitioner's cooperation, failing which the petitioner could seek lifting the bank account attachment.

The petition was disposed of with no order as to costs.

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