9911796707
TMI Blog2016 (5) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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 - MISC. CIVIL APPLICATION (FOR REVIEW) NO. 1149 of 2016, SPECIAL CIVIL APPLICATION NO. 10966 of 2015 - - - Dated:- 7-4-2016 - MS. HARSHA DEVANI AND MR. G.R.UDHWANI FOR THE PETITONER : MS MAITHILI MEHTA, ASSISTANT GOVERNMENT PLEADER FOR THE OPPONENT : MR SAURABH SOPARKAR, SENIOR ADVOCATE with MR DHAVAL SHAH, ADVOCATE ORAL ORDER (PER : HONOURABLE MS.JUSTICE HARSHA DEVANI) 1. By this application, the applicant seeks review of the judgment and order dated 8.3.2016 passed by this court in Special Civil Application No.10966 of 2015. 2. It is the case of the applicant, as averred in the application, that the respondent herein had presented the captioned petition challenging the order dated 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned provisionally by exercising powers under section 39 of the GVAT Act. That the respondent herein approached this court by way of the captioned petition challenging the order of withholding refund under section 39 of the GVAT Act. It is the case of the applicant that revision notices dated 23.2.2016 under section 75 of the GVAT Act have been issued to the respondent for reviewing and recalling the refund sanctioning orders dated 18.2.2015 and 10.3.2015 and that this court, by not considering the same, has directed the authorities to pay the claim of refund with respect of the amount of ₹ 1,69,68,477/-. Being aggrieved by the directions issued by this court to forthwith disburse refund along with interest to the original petitioner in terms of the provisional refund orders dated 18.2.2015 and 10.3.2015 on the ground that the same would render the proceedings under section 75 of the GVAT Act nugatory; the applicant has filed the present application for review. 4. Ms. Maithili Mehta, learned Assistant Government Pleader for the applicants, submitted that before this court passed the order dated 8.3.2016, a revision notice dated 23.2.2016 had been issued to the respondent in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8.3.2016 renders the statutory remedy available to the applicants redundant by giving directions to pay refund of the amount which the respondent is not entitled. 4.1 In support of her submissions, the learned Assistant Government Pleader placed reliance upon the decision of the Supreme Court in the case of Board of Control for Cricket, India v. Netaji Cricket Club, AIR 2005 SC 592 and more particularly, paragraphs 90, 93 and 95 thereof. It was, accordingly, submitted that an application for review is also maintainable if there exists sufficient reason therefor and that the words sufficient reason under Order 47 rule 1 of the Code are wide enough to include a misconception of fact or law by a court or even an advocate. It was submitted that in the facts of the present case, there was a misconception of fact, inasmuch as, the proceedings initiated under section 75 of the GVAT Act had not been taken into consideration and hence, the present case falls within the ambit of the review jurisdiction of this court as contemplated under Order 47 rule 1 of the Code. It was, accordingly, urged that the application deserves to be allowed and that the order dated 8.3.2016 passed by this c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the refund sanctioning orders is paid over to the respondent. 8. Testing the above contention of the applicants on the anvil of the facts of the case, the record reveals that the captioned writ petition was heard from time to time, and by an order dated 29.2.2016, the matter was adjourned to 2.3.2016 for dictation of the judgment. It appears that while the court was in the midst of hearing of the petition, a notice came to be issued under section 75 of the GVAT for taking the refund sanctioning orders dated 18.2.2015 and 10.3.2015 in revision. It may be noted that the Deputy Commissioner of Commercial Tax, Nadiad had, as late as on 23.2.2016, viz., the date on which the alleged revision notice came to be issued, filed a further affidavit in reply wherein, while it was inter-alia contended that if this court allows the present petition it would render the remedy of provision of revision under section 75 redundant at the very threshold, no facts regarding such action having been initiated or that such action was under contemplation have been stated. Thus, as on 23.2.2016, viz., the date on which the further affidavit came to be filed, it is evident that no action had been take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kely to be sustained, the concerned authority under the GVAT Act has invoked powers under section 75 of the GVAT Act by issuing notice dated 23.3.2016 for taking the orders of refund dated 18.2.2015 and 10.3.2015 in revision. It may be noted that not only has the fact regarding issuance of notice invoking powers under section 75 of the GVAT Act not been brought on record at any time till the order under review came to be dictated in the open court on 8.3.2016, such notice has not been placed on record even with this application. Thus, except for the bare assertion that proceedings have been initiated under section 75 of the GVAT Act, till date no document in support of such assertion has been placed on record. 9. It may be noted that what was subject-matter of challenge in the captioned petition was the order passed under section 39 of the GVAT Act seeking to withhold the provisional refund which was granted in favour of the original petitioner. The court set aside the order on the ground that the necessary ingredients for invoking powers under section 39 of the GVAT Act had not been satisfied. Since there was no warrant for the applicants to thereafter withhold the refund, this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent should be relegated to avail of the remedy of appeal under section 73 of the GVAT Act, such contention was also raised at the time of hearing of the captioned petition and has been duly dealt with in paragraph 6 of the order dated 8.3.2016 and hence, if the applicant is aggrieved thereby, it has to challenge the same before the higher forum. 12. It has also been submitted that the Deputy Collector was also of the opinion that due to fraudulent and false transactions, the revenue of the State is likely to be adversely affected and he had, therefore, exercised powers under section 39(1) of the GVAT Act. In this regard, 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. 13. Before the court apa ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
