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2016 (5) TMI 3 - HC - VAT and Sales TaxRefund of un-utilized input tax credit - Review and Revision u/s 75 of the GVAT Act - writ petition - remedy of appeal under section 73 of the GVAT Act - earlier the court had vacated the order to withheld the refund u/s 39 - revenue contended that direction to disburse the refund adversely affects the State Government - Held that - apart from the fact that this is a submission on the merits of the main petition, it is a matter of record that in the order dated 3.7.2015 made under section 39(1) of the GVAT Act, no such satisfaction has been recorded, inasmuch as, there is not even a whisper therein to the effect that grant of refund would adversely affect the revenue nor is there any reference to any fraudulent or false transaction, and now by way of this application the grounds stated in the said order are sought to be supplemented by bringing in new grounds. Invokation of powers of review - Held that - on behalf of the applicant no new or important matter or evidence which after the exercise of due diligence could not be produced on record has been produced, nor has any error apparent on the face of the record been shown. For the reasons recorded hereinabove, no other sufficient reason for exercise of review jurisdiction can be stated to have been made out. In the absence of any of ingredients for invoking powers of review as contemplated under rule 1 of Order XLVII of the Code of Civil Procedure being satisfied, the applicant is not entitled to any of the reliefs prayed for in the application. - Decided against the revenue - Refund to be allowed
Issues Involved:
1. Review of the judgment and order dated 8.3.2016. 2. Disbursement of refund along with interest in terms of provisional refund orders. 3. Invocation of powers under section 39 and section 75 of the GVAT Act. 4. Allegations of fraudulent and false transactions affecting state revenue. 5. Consideration of statutory remedies under section 73 and section 75 of the GVAT Act. 6. Maintainability of the review application under Order 47 Rule 1 of the Code of Civil Procedure. Detailed Analysis: Issue 1: Review of the Judgment and Order Dated 8.3.2016 The applicant sought a review of the judgment and order dated 8.3.2016, which directed the authorities to disburse the refund amount along with interest to the respondent. The applicant contended that the court's order would render the proceedings under section 75 of the GVAT Act nugatory. Issue 2: Disbursement of Refund Along with Interest The respondent, a dealer registered under the GVAT Act and the Central Sales Tax Act, 1956, had claimed a provisional refund for the period 1.7.2014 to 30.9.2014. The authorities had sanctioned a provisional refund of ?1,52,42,129/- but later withheld the refund by exercising powers under section 39 of the GVAT Act. The court had directed the authorities to disburse the refund, finding that the conditions for withholding the refund under section 39 were not satisfied. Issue 3: Invocation of Powers Under Section 39 and Section 75 of the GVAT Act The applicant argued that a revision notice dated 23.2.2016 had been issued under section 75 of the GVAT Act to review the refund sanctioning orders. The court noted that the fact regarding the invocation of section 75 powers was not brought to its notice during the hearing of the original petition. The court found that the invocation of section 75 powers was an afterthought to thwart the writ petition proceedings. Issue 4: Allegations of Fraudulent and False Transactions The applicant contended that the Deputy Commissioner had exercised powers under section 39(1) of the GVAT Act due to concerns about fraudulent and false transactions affecting state revenue. The court observed that the order dated 3.7.2015 made under section 39(1) did not mention any fraudulent transactions or adverse effects on revenue, and new grounds were being introduced through the review application. Issue 5: Consideration of Statutory Remedies Under Section 73 and Section 75 of the GVAT Act The applicant suggested that the respondent should be relegated to avail the statutory remedy under section 73 of the GVAT Act. The court had already addressed this contention in its order dated 8.3.2016, and any grievance regarding this should be taken up before a higher forum. Issue 6: Maintainability of the Review Application Under Order 47 Rule 1 of the Code of Civil Procedure The applicant relied on the Supreme Court decision in Board of Control for Cricket, India v. Netaji Cricket Club, arguing that the review was maintainable due to a misconception of fact or law. The court found that no new or important matter or evidence had been produced, nor was there any error apparent on the face of the record. The court concluded that none of the circumstances warranting a review under Order 47 Rule 1 of the Code of Civil Procedure were satisfied. Conclusion: The court rejected the review application, holding that the applicant had not made out any of the grounds necessary for invoking the review jurisdiction. The court emphasized that merely because an order adversely affects a party is no ground for review. The application failed to demonstrate any new or important matter, error apparent on the face of the record, or any other sufficient reason for review.
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