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TMI Blog2017 (1) TMI 785X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to interest on the refund which arises as a consequence of the order passed by the learned appellate authority - apart from the fact that the delay has not been properly and sufficiently explained, even the Appeal deserves to be dismissed even on merits also, as the appeal lacks merits - appeal dismissed - decided against appellant. - CIVIL APPLICATION (OJ) NO. 29 of 2017 In STAMP NUMBER NO. 3032 of 2016 With STAMP NUMBER NO. 3032 of 2016 With STAMP NUMBER NO. 3034 of 2016 In STAMP NUMBER NO. 3032 of 2016 - - - Dated:- 11-1-2017 - MR. M.R. SHAH AND MR. B.N. KARIA, JJ. FOR THE APPLICANT : MR HARDIK VORA ASST.GOVERNMENT PLEADER ORAL ORDER (PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.00. Present application under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereafter papers were handed over to the office of the learned learned Government Pleader on 24/6/2016 to file Tax Appeal. However, appeal has been preferred on 5/12/2016. There is no explanation whatsoever for the period from 24/6/2016 to 5/12/2016. Under the circumstances, there is no proper and sufficient explanation explaining the huge delay of 258 days. Under the circumstances and considering the decision of the Hon'ble Supreme Court in the case of the Office of Chief Post Master General and others Versus Living Media India Ltd. and another, reported in 2012 (3) SCC 563 , present application deserves to be dismissed. 3.00. Even otherwise, to prima facie satisfy ourselves, whether there is merits in the main appeal, as, if the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere refund of any amount becomes due to the dealer by virtue of an order of assessment under section 41, for the specified year, he shall, subject to the provisions of this section, be entitled to receive, in addition to the said amount, simple interest at the rate of nine per cent per annum, on the said amount from the date immediately following the date of closure of the accounting year to which the said amount relates to the date of order of assessment : PROVIDED that where dealer has paid any amount after the closure of the accounting year and such amount is required to be refunded, no interest shall be payable for the period from the date of closure of such accounting year to the date of payment of such amount : PROVIDED FU ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or (b) is attributable to the dealer, whether wholly or in a part the period of the delay attributable to him shall be excluded from the period for which interest is payable. Explanation 2 : In the case of an order relating to refund passed in appeal or in revision, the period of ninety days shall be calculated from the date of the receipt of such order by Sales Tax Officer. (2) Where any question arises as to the period to be excluded for the purposes of calculation of interest under the provisions of this section, such question shall be determined by the Commissioner whose decision shall be final. Section 38 of the Gujarat Value Added Tax,2003: 38. Where refund of any amount of tax becomes due to the dealer by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reduced accordingly: (2) Where the realization of any amount remains stayed by the order of any court or authority and such order is subsequently vacated, interest shall be payable also for any period during which such order remained in operation. Considering the aforesaid facts and circumstances, it cannot be said that the learned tribunal has committed any error in holding that the dealer is entitled to interest on the refund which arises as a consequence of the order passed by the learned appellate authority. Under the circumstances, we are of the opinion that apart from the fact that the delay has not been properly and sufficiently explained, even the Appeal deserves to be dismissed even on merits also, as the appeal lacks ..... X X X X Extracts X X X X X X X X Extracts X X X X
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