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TMI Blog2020 (2) TMI 297X X X X Extracts X X X X X X X X Extracts X X X X ..... at the tax has been evaded etc. In the facts of the case, no notice has been issued till date by the respondent authority invoking provisions of Section 8(A)(a) of Section 34 of the VAT Act, 2003 - Therefore, in contemplation of invoking such provision for assessment without there being any satisfaction of the prescribed authority that the tax has been evaded etc. by the petitioner, the refund cannot be withheld. The respondents are directed to pay to the petitioner amount of ₹ 63,843/- together with 6% interest forthwith and latest by 31st January 2020 - petition allowed. - R/SPECIAL CIVIL APPLICATION NO. 540 of 2020 - - - Dated:- 22-1-2020 - MR. J.B. PARDIWALA AND MR. BHARGAV D. KARIA JJ. Appearance: Mr. Digant M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tarting from 01.04.2011 to 31.03.2012 and from 01.04.2012 to 31.03.2013. (iii) The petitioner accordingly, deposited an amount of ₹ 83,106/- on 13.02.2013. (iv) It is the case of the petitioner that for the assessment year 2012-2013, the respondent No.2 passed the assessment order under Sections 32, 43, 35 of the Gujarat Value Added Tax, 2003 (for short the 'VAT Act', 2003) on 15.03.2013. (v) In the assessment order, for the year 2012-2013 passed by the respondent No.2 on 15.03.2013, the tax payable by the petitioner was assessed at ₹ 19,263 and was ordered to be deducted from the amount deposited by the petitioner. (vi)The petitioner, thereafter, waited for 8 years for refund of the balance amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the refund is not issued. Reference was made on the averments made in the Paragraph Nos.5 and 6 of the affidavit-in-reply, which read as under : 5. The petitioner in the present writ petition has prayed for appropriate direction for released of amount of refund amounting to ₹ 63,843/- from the respondent authorities principally on the ground that for assessing the returns of the petitioner for the assessment year 2011-12, 8 years have already passed and as such there is no assessment order, the said amount is illegally withheld by the respondent authorities and is required to be refunded to the petitioner along with the interest. 6. In this regard, the attention of this Hon'ble Court is drawn to the notice dated 30.01.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment of tax penalty or interest payable by the petitioner for the respective years. 7.1. There is no provision in the VAT Act, 2003, whereby the assessee may be compelled to deposit any amount during the course of search or inspection. It appears that the petitioner in his bona fide belief waited for the expiry of the period prescribed under the provisions of Section 34 of the VAT Act, 2003 for the assessment to be made under Sub-section (2), (5), (6) or (7) up to 4 years and assessment under sub-Section (8) upto 8 years. 7.2. Sub-sections 9 and 10 of Section 34 which provides for time limit for completion of assessment read as under : 34. Audit assessment. (9) No assessment under sub -sections (2),(5),(6) or (7) shall b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then refund only the balance amount, if any: Provided further that no adjustment under the provision shall be made towards a recovery of an amount due that has been stayed by an appellate authority. (2) Where any refund due to any dealer, according to the return furnished by him for any period, such refund may provisionally be adjusted by him against the tax due and payable as per the returns furnished under section 29 for any subsequent period in the year. Provided that the amount of tax, or penalty, interest or surety forfeited or all or any of them due from and payable by the dealer on the date of such adjustment, shall first be deducted form such refund before making the adjustment. 7. 5.On perusal of the aforesaid p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of Section 34 (8A)(a) reads as under : 34. Audit assessment. [(8A)(a) During the course of any proceedings under this Act, if the prescribed authority is satisfied that the tax has been evaded or sought to be evaded or the tax liability has not been disclosed correctly or excess tax credit has been claimed by any dealer in respect of any period or periods by not recording or recording in an incorrect manner, any transaction of sale or purchase, or that any claim has been incorrectly made, then in such a case notwithstanding any notice for assessment has been issued under other provisions of this section or any other section of this Act, the prescribed authority may, after giving such dealer a reasonable opportunity of being ..... X X X X Extracts X X X X X X X X Extracts X X X X
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