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TMI Blog2013 (12) TMI 975X X X X Extracts X X X X X X X X Extracts X X X X ..... y which, the learned Tribunal has allowed the said appeal preferred by the respondent herein holding that the respondent dealer shall be entitled to interest on provisionally granted refund of Rs. 2,74,253/at the rate of 6% p.a under Section 38(2) of the Gujarat Value Added Tax Act, 2003 (hereinafter referred to as the "Act"), subject to conditions that if the dealer has utilized carried forward tax credit while filing its return for the next period and reduced its tax liability, in that case, its claim for interest on such refund would not be allowable. 2.0. The facts leading to the present Tax Appeal in nutshell are as under: 2.1. That the opponent herein is registered dealer under the Act and is engaged in the business trading of iron ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod 1.4.2007 to 10.1.2008 @ 6% p.a under Section 38(2) of the Act. 2.3. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned Tribunal, the Appellant State of Gujarat has preferred present appeal. 3.0. Shri Gandhi, learned Assistant Government Pleader has vehemently submitted that the learned Tribunal has materially erred in holding that the dealer shall be entitled to the interest on provisionally granted refund of Rs. 2,74,253/. It is submitted that learned Tribunal has misinterpreted Section 38(2) of the Act. It is submitted that interest as provided under Section 38(2) of the Act shall not be payable on provisional refund. It is submitted that considering Section 38 (2) of the Act the dealer is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visional refund is granted, the dealer shall be entitled to interest on the said provision refund as available under subsection (2) of Section 38 of the Act or not ? 4.1. Section 38 of the Gujarat Value Added Tax Act, 2003 reads as under: "38.Interest on refund: ( 1) Where refund of any amount of tax becomes due to the dealer by virtue of an order of assessment under Section 34, he shall subject to the provision of this Section be entitled to receive in addition to the amount of tax, simple interest at the rate of 6% per annum on the said amount of tax from the date immediately following the date of the closure of the accounting year to which the said amount of tax relates till date of payment on amount of said refund. Provided that wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntitled to receive in addition to the amount of tax, simple interest at the rate of 6% per annum on the said amount of tax from the date immediately following the date of the closure of the accounting year to which the said amount of tax relates till date of payment on amount of said refund. However, the same shall be subject to the proviso to subsection (1) of Section 38. 4.3. Subsection (2) of Section 38 provides that a registered dealer shall be entitled to refund in pursuance of any order other than referred to under subsection (1) (audit assessment) or in pursuance of any order by any Court, be entitled to receive in addition to refund, simple interest at the rate of 6% p.a on the amount of such refund from the date immediately follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovision of Section 38(2) is very clear and it specifically provides that a dealer shall be entitled to receive simple interest at the rate of 6% p.a on the amount of refund in pursuance of any order other than referred to in Section 38 (1) or in pursuance of any order by any Court and as observed herein above "order" referred to in Section 38(2) shall include order or provisional refund. 5.0. The impugned order passed by the learned Tribunal is on correct interpretation of law. We are in complete agreement with the view taken by the learned Tribunal that dealer shall be entitled interest as provided under subsection (2) of Section 38 of the Act on the amount of provisional refund also. We see no reason to interfere with the impugned order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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