9911796707
TMI Blog2018 (4) TMI 1669X X X X Extracts X X X X X X X X Extracts X X X X ..... peal as well as stay petitions were pending, the Department coercively recovered the entire amount of tax of Rs. 3,39,83,894/= through attachment of the petitioner's bank accounts. A sum of Rs. 1,23,89,961/= was recovered from the petitioner's account with Duetsche Bank on 10th March 2010 and a further sum of Rs. 2,15,94,684/= was recovered from the petitioner's HSBC Bank on 20th March 2010. On 23rd March 2015, Deputy Commissioner of Commercial Tax allowed the petitioner's appeal. By virtue of this order, therefore, the amount of Rs. 3,39,83,894/= recovered by the Department from the petitioner pursuant to the order of assessment became due and payable. The petitioner, therefore, on 16th September 2015 wrote to the Department and requested that such amount be refunded with interest. Since there was no response from the Department, the petitioner again wrote letters on 1st July 2016; 22nd August 2016; 12th September 2016 and 19th September 2016. In such letters, he quantified the rate of interest at 9%, referring to the provisions of the Gujarat Sales Tax Act. Finally on 6th February 2017, the Department passed an order of refund, however for sometime thereafter, there was no act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... escribed at 9% per annum. The authorities have committed serious error in applying the provisions of the Gujarat Value Added Tax Act, 2003 and in reducing the rate of interest @ 6% and further in providing interest only after the order of appellate authority was passed. In this context, counsel relied on certain judgments, to which we would refer at appropriate stage. On the other hand, learned AGP opposing the petitions contended that [a] as per Section 54 of the Gujarat Sales Tax Act and Section 38 of the Gujarat Value Added Tax Act, interest would be payable only from the date of appellate order and not from the date of recovery by the Department. He further submitted that the rate of interest prescribed under the Gujarat Value Added Tax Act is 6% per annum. The petitioner is not correct in claiming such interest @ 9% per annum. He lastly contended that the petitioner itself was responsible for providing incorrect details of the Bank account. Only after such details were correctly supplied by the petitioner, the Department could transfer money directly to the petitioner's account. For such period, the Department could not be burdened with interest liability. Section 54 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amount is deposited after the closure of the accounting year, interest will not be payable for the period from the date of closure of the accounting year to the date of payment of such amount. As per clause (a) of sub-section [1], where amount of refund; by virtue of an order of assessment is not refunded within thirty five days of the order, liability to pay interest @ 9% per annum would continue till the actual payment. Clause (b) of sub-section [1] provides that where an amount is required to be refunded by the Commissioner by virtue of any other order made under the Act and is not refunded within ninety days of the order, the liability to pay simple interest @ 9% per annum would arise. According to learned AGP, case of the petitioner would fall under Clause (b) since the refund claim arises out of an order of appellate authority and not an order of assessment. However, such a question was examined by the Division Bench of this Court in the case of State of Gujarat v. Doshi Printing Press, [2015] 82 VST 384 [Gujarat] wherein, the Court held and observed as under : "9. In our view, once an order is passed by the competent authority for assessment and the appeal is preferr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portion of the decision discussed the compensatory nature of interest to be paid and the Department is in appeal before the Supreme Court. However, as far as first portion of the judgment; reproduced hereinabove, we have no hesitation in respectful concurrence. When the statutory appellate authority allows the appeal of an assessee, it only corrects the order of assessment. In other words, he gives legal shape to the contours of the matter, which in any case the Assessing Officer should have adopted. In terms of Section 54 [1] of the Gujarat Sales Tax Act, therefore, in such a situation, it cannot be stated that the refund claim of the assessee arises out of an order other than an order of assessment. The appellate authority while allowing the appeal merely corrects the assessment. It is such corrected assessment which would prevail. The refund claim of the assessee, therefore, cannot be stated to have arisen other than from the order of assessment. Somewhat similar provisions have been made in the Gujarat Value Added Tax Act concerning interest under Section 38. The said Section reads as under : "38. Interest on refund (1) Whether refund of any amount of tax becomes due to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, pursuant to the order of assessment from the date of its refund till the actual payment - whether applying Gujarat Sales Tax Act or Gujarat Value Added Tax Act provisions. Section 100 of the Gujarat Value Added Tax Act is the repeal and saving provision, relevant portion of which reads as under: 100. Repeal and Savings : (1) The Gujarat Sales Tax Act, 1969, the Bombay Sales of Motor Spirit Taxation Act, 1958 and the Gujarat Purchase Tax on Sugarcane Act, 1989 are hereby repealed. Provided that such repeal shall not affect the previous operation of the said Acts or any right, title, obligation or liability, already acquired, accrued or incurred there under and subject thereto, anything, done or any action taken including any appointment, notification, notice, order, rule form or certificate in exercise of any powers conferred by or under the said Act shall be deemed to have been done or taken in exercise of the powers, conferred by or under this Act, as if this Act were in force on the date on which such thing was done or action was taken, and all arrears of tax and other amount due at the commencement of this Act may be recovered as if they had accrued under this Act." ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
