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TMI Blog2020 (7) TMI 676X X X X Extracts X X X X X X X X Extracts X X X X ..... e - In the present case, there is no order passed by the Commissioner recording his satisfaction and since there is no order of the Commissioner, there is no question of affording any opportunity. The Sales Tax Officer has no authority to withhold the amount under Section 39 of the VAT Act. At the best he could have referred the matter to the Commissioner for taking appropriate decision, if he was of the view that the revenue would be adversely affected. That having not been done, the order of the Sales Tax Officer dated 18.10.2019, impugned in the present petition (Annexure-A), cannot be sustained. Normally, an opportunity would be given to the Commissioner to pass an order, but since no such power has been exercised by the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MANISHA L SHAH, GOVERNMENT PLEADER/PP(99) for the Respondent (s) No. 1 NOTICE SERVED BY DS(5) for the Respondent(s) No. 1,2,3 ORAL ORDER (PER : HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH) 1. We have heard Ms. Sangeeta Pahwa, leaned counsel for the petitioner and Ms. Manisha L. Shah, learned Government Pleader for the State respondent. 2. By means of this petition under Article 226 of the Constitution of India, the petitioner has prayed for quashing and setting aside order dated 18.10.2019 passed by the respondent No.2 State Sales Tax Officer withholding the refund of ₹ 15 lakhs paid as pre-deposit. Further prayer is to direct the respondents to forthwith refund the said amount along with 18% interest from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt. It is this order which is under challenge with a further prayer to direct the respondent No.1 to pay ₹ 15 lakhs along with interest. 5. Ms. Pahwa, learned counsel for the petitioner, has made several submissions and in response Ms. Manisha L. Shah, learned Government Pleader defended the decision withholding the pre-deposit. 6. However, having considered the submissions and having perused the statutory provisions, we are of the view that this petition deserves to be allowed on the sole ground that the impugned order was passed by the Sales Tax Officer, who had no authority to withhold the amount under Section 39 of the VAT Act. For ready reference Section 39 of the VAT Act is reproduced herein below: 39. Power to with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngly quash the same. 8. Normally, we would have given opportunity to the Commissioner to pass an order, but since no such power has been exercised by the Commissioner for the last 5 years, today we are not inclined to grant such liberty. 9. The next question which arises is whether appropriate direction for refund would be given or not. As per the impugned order, till that date, no appeal had been filed before the Supreme Court. Further the petitioner had succeeded before the Tribunal in August, 2015. The Department took two years to file appeal before the High Court which was dismissed in October, 2018. Thereafter, much later the Department has simply submitted an appeal before Supreme Court on 05.03.2020 and Dairy No.9032 of 2020 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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