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TMI Blog2021 (2) TMI 249X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of the Section 36 of the VAT Act, 2003. The respondents are directed to pay to the writ applicants an amount of ₹ 14,61,850/- together with the statutory interest @ 6 % within a period of six weeks from the date of communication of this order - Application allowed. - R/Special Civil Application No. 9431 of 2020 - - - Dated:- 1-2-2021 - Honourable Mr. Justice J.B. Pardiwala And Honourable Mr. Justice Ilesh J. Vora For the Petitioner(s) : Mr D K Trivedi For the Respondent(s) : Notice Served ORAL ORDER (PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA) 1. By this writ application under Article 226 of the Constitution of India, the writ applicants have prayed for the following reliefs :- A. Your Lord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring for the respondents. 6. The stance of the respondents in the present litigation as reflected from the averments made in para 6 of the reply, reads as under: 6. It is further submitted before this Hon'ble Court that the respondent authorities have initiated assessment proceedings in case of the petitioner for Financial year 2012-13, 2013-14, 2014-15. The respondent authorities had also initiated penalty proceedings for Financial Year 2015-16. In this regard, notices in Form No.302, 304 and 309 for initiation of assessment proceedings under section 34 (2) of the Gujarat Value Added Tax Act, 2003 came to be served upon the petitioner on 28/12/2015 itself. The petitioner was called upon to remain present with all the mater ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is for provisional assessment u/s. 32 (supra). As against that on perusing all the orders annexed from page Nos.67 to 94 (Annexure 'A' to the Affidavit-in-Reply), it may be observed that they all are in Form 304 being passed for provisional assessment u/s. 32 ((supra)). Thus, although notice for audit assessment was issued for F.Y. 201213 to 2014-15, order is passed for provisional assessment in line with order for F.Y.201516. Instead of making regular assessment for F.Y. 2012-13333 to 2014-15, provisional assessment is made and that too without making any regular assessment which is mandatory. 8. We are of the view that there is no legal justification for withholding the amount referred to above, which is otherwise refundabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 Subsection (2), (5), (6) or (7) up to 4 years and assessment under sub-Section (8) upto 8 years. 7.2. Subsections 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 be made after the expiry of four years from the end of the year in respect of which of part of which the tax is assessable. (10) No assessment under subsection (8) shall be made after the expiry of eight years from the end of the year in respect of which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 provision, it appears that, in absence of any assessment for the year 2011-2012 and more particularly, when the time period for completion of assessment is over as prescribed under the provisions of Section 34(9) and 34(10) of the Act, 2003, the respondents are not en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 heard, initiate assessment of the dealer in respect of such transaction or claim: 7.9. 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. 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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