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TMI Blog2017 (1) TMI 1221X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 65 and Section 54, on the appeal being allowed and th tax liability is either reduced or set aside by the appellate authority in that case, concerned person shall be entitled to get back the said amount / refund the said amount with interest on completion of 90 days from the date of order passed by the Appellate Authority / Tribunal. Any other contrary view shall deprive interest of the concerned person. However, consdiering Section 54 the period of 90 days shall be calculated from the date of reciept of such order by the Sales Tax Officer (order passed by the Appellate Authority / Tribunal). The petitioners shall be entitled to interest at the rate of 9% p.a on the amount deposited by them as predeposit while preferring the appeal against the assessment order - petition allowed - decided in favor of petitioner. - SPECIAL CIVIL APPLICATION NO. 17876 of 2016 With SPECIAL CIVIL APPLICATION NO. 17884 of 2016 - - - Dated:- 19-1-2017 - MR. M.R. SHAH AND MR. B.N. KARIA, JJ. FOR THE PETITIONER : M/S WADIAGHANDY CO, ADVOCATE FOR THE RESPONDENT : MR. HARDIK VORA ASST.GP/PP CAV JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.0. As common question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for all the assessment years. 5.4. Aggrieved by the order passed by the First Appellate Authority, the petitioner no.1 preferred Second Appeal before the Tribunal. That by judgment and order dated 31.08.2004, the learned Tribunal has allowed the appeal and has held that petitioner no.1 is entitled to claim the exemptions / benefits granted to it under Section 49(2) of the Act without submission of Form No.26. The learned Tribunal also concluded that purchases made by the petitioner no.1 from exemted units are to be considered as exempted goods and therefore, upon such purchases the tax is not leviable under Section 15 B of the Act. By holding so, the learned Tribunal remanded the matter back to the respondent no.3 Joint Commercial Tax Commissioner to look into the matter afresh and in light of the observations of the learned Tribunal. 5.5. Subsequent thereto, in furtherance of the order passed by the learend Tribunal dated 31.08.2004, the respondent no.3 inquired into the matter afresh and passed the order dated 30.06.2015 for AY 199495 and the orders dated 21.07.2015 for the AY 199596, 199697 and 199798 respectively holding that as the petitioner no.1 holds the exemption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal filing against the order of Assessing Officer. In support of his above submission, he has heavily relied upon the decisions of the Division Bench of this Court in the case of State of Gujarat vs. Doshi Printing Press rendered in Tax Appeal No. 87 of 2015; in the case of Essar Power Limited vs. State of Gujarat, Commissioner of Sales Tax rendered in Sales Tax Reference No. 5 of 2005; in the case of State of Gujarat vs. Jupiter Engineer rendered in Tax Appeal No. 86 of 2015 and in the case of State of Gujarat vs. Star Industries rendered in Tax Appeal No. 222 of 2015. 7.2. It is submitted that therefore, when pursuant to the order passed by the respondent no.3, the petitioners are entitled to refund of tax paid in excess including amount of predeposit, which the petitioners deposited while preferring the appeals, the petitioners are entitled to interest at the rate of 9% p.a on such amount of predeposit also. 7.3. It is further submitted by Shri Bhatt, learned advocate for the petitioners that any amount deposited as predeposit while preferring the appeal can be said to be towards part payment of tax and therefore, the amount is required to be refunded pursuant to the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer for AY 199495 to 199798 that the petitionersdealer is liable to pay tax / additional tax under Section 15 B of the Act and raised additional demand of tax visavis purchaess made by the petitioner no.1. That the First Appellate Authority partly allowed the appeal / appeals for all the assessment years. However, on further appeal preferred before the learned Tribunal, the learned Tribunal has held that the petitioner no.1 is entitled to claim the exemptions / benefits granted to it under Section 49(2) of the Act and the purchasese made by the petitioner no.1 from exempted units are to be considered as exempted goods and hence not liable to pay additional tax upon such purchases under Section 15 B of the Act. However, while preferring the appeals, the petitioners deposited some amount, as predeposit, as required under Section 65(4) of the Act, which is a statutory requirement while preferring appeal. That thereafter, the appeals are allowed and the tax liability has been set aside. That thereafter, the appropriate authority has refunded the amount deposited which are found to be in excess to the liability, however without any interest on the amount of predeposit. It is the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the date of order, shall pay to such person simple interest at the rate of 9% per annum on the said amount from the date immediately following the expiry of the period specified in clause (a) or, as the case may be, clause (b) to the date of the refund. Explanation 2 to proviso further provides that 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. 12.1. Therefore, on conjoint reading of the subsection( 4) of Section 65 and Section 54, on the appeal being allowed and th tax liability is either reduced or set aside by the appellate authority in that case, concerned person shall be entitled to get back the said amount / refund the said amount with interest on completion of 90 days from the date of order passed by the Appellate Authority / Tribunal. Any other contrary view shall deprive interest of the concerned person. However, consdiering Section 54 the period of 90 days shall be calculated from the date of reciept of such order by the Sales Tax Officer (order passed by the Appellate Authority / Tribunal). 13.0. Now, so far as reliance p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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