2016 (12) TMI 467 - HC - VAT and Sales Tax

Refund claim - pre-audit - revisional jurisdiction - Article 226 of the Constitution - Held that - it cannot be said that respondent has issued show cause notice to take order dated 07.07.2016 under suo motu revision has no jurisdiction at all and / or considering the provision of statute, it cannot be said that there is total lack of jurisdiction and the petitioners have yet to reply to the show cause notice and ample opportunity shall be available to the petitioners to represent their case and / or making submission before the revisional authority, we are of the opinion that present petition which is at the stage of show cause notice may not entertained and the petitioners may be relegated to reply to the show cause notice and participate in the revisional proceedings. It will always be open for the petitioners to make submission before the Revisional Authority and in reply to the show cause notice that there is no factual foundation to take order dated 07.07.2016 under suo motu revision and / or grounds stated in the show cause notice are not tenable and the revisional authority bound to consider the same in accordance with law and on merits. Therefore, we are of the opinion that no exceptional case is made out to interefere with the present petition under Article 226 of the Constitution of India against the show cause notice - present petition not entertainable - The petitioners are relegated to file reply to the show cause notice and participate in the revisional proceedings. In the facts and circumstances of the case, the Revisional Authority is directed to decide and dispose of revision (suo motu revision) against the orde dated 07.07.2016 within the perod of two months from the date of filing of the reply to the show cause notice by the petitioners, however after observing principles of natural justice and giving fullest opportunity to the petitioners - petition dismissed.

Summary

Issues:
1. Entitlement to refund after order by First Appellate Authority.
2. Validity of impugned notice for revision dated 23.08.2016.
3. Jurisdiction of Revisional Authority under Section 59 of Gujarat Sales Tax Act.

Entitlement to Refund:
The petitioners sought a writ to quash an impugned notice for revision and withholding of refund. The First Appellate Authority had declared the petitioners entitled to a refund of a specific amount. However, a subsequent notice for revision was issued by the Revisional Authority, challenging the refund order. The petitioners argued that despite the availability of an efficacious remedy, the impugned notice was issued, preventing the refund. They contended that the grounds cited in the notice, particularly unjust enrichment, were not applicable in this case.

Validity of Impugned Notice:
The respondent raised a preliminary objection regarding the entertainability of the petition under Article 226, stating that the proceedings were at the show cause notice stage. The Assistant Government Pleader argued that the petitioners should respond to the show cause notice and exhaust statutory remedies before seeking relief. The petitioner's counsel countered, emphasizing that the impugned notice was issued to prevent the refund, even though the First Appellate Authority had already determined their entitlement.

Jurisdiction of Revisional Authority:
The court examined the jurisdiction of the Revisional Authority under Section 59 of the Gujarat Sales Tax Act. It was noted that the petitioners had not yet responded to the show cause notice issued by the Revisional Authority. Citing relevant legal precedents, the court emphasized the importance of exhausting statutory remedies before seeking relief through a writ petition. The court directed the petitioners to reply to the show cause notice and participate in the revisional proceedings, allowing the Revisional Authority to decide on the matter within two months while ensuring principles of natural justice were followed.

In conclusion, the court dismissed the present petition, instructing the petitioners to engage in the revisional process and respond to the show cause notice. The Revisional Authority was directed to adjudicate on the matter within a specified timeframe, maintaining fairness and providing ample opportunity for the petitioners to present their case.