TaxTMI 
TaxTMI 
2016 (3) TMI 1074
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....provisional refund orders dated 18.2.2015 and 10.3.2015. 2.1 The petitioner is a proprietary concern of Shri Amit Trilokchand Goyal and is, inter-alia, engaged in trading of various products, including cigarettes. The petitioner is a dealer registered under the provisions of the Gujarat Value Added Tax Act, 2003 (hereinafter referred to as the "GVAT Act") as well as under the Central Sales Tax Act, 1956. The petitioner purchased cigarettes of various brands from the State of Gujarat and availed input tax credit in terms of section 11(3) of the GVAT Act as the same were purchased for the purpose of re-sale in the State of Gujarat and in the course of inter-state trade and commerce. Since the petitioner was not in a position to utilise the entire amount of input tax credit availed on purchase of the goods, he filed a provisional refund claim for Rs. 1,69,68,477/- in terms of the provisions of rule 37 of the Gujarat Value Added Tax Rules, 2006 (hereinafter referred to as "the rules") on 17.11.1994 for the tax period 1.7.2014 to 30.9.2014. It is the case of the petitioner that he had submitted the requisite documents, viz., sales and purchase registers, purchase invoices, sales invoic....
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....d 23.4.2015, the Assistant Commissioner of Commercial Tax, by a letter dated 27.4.2015, informed the petitioner that the third respondent had directed him not to disburse the amount of refund till further orders. He had also stated that since he did not have jurisdiction over the sanction of refund and the Deputy Commissioner was only the proper officer to sanction and disburse the refund claim, the petitioner should approach the Deputy Commissioner of Commercial Tax for sanctioning the refund. 2.5 Since the third respondent did not disburse the amount of provisional refund claim, the petitioner was continuously following up with the office of the third respondent. In the meanwhile, the third respondent issued a show cause notice dated 22.5.2015 to the petitioner calling upon him to submit various documents in support of the provisional refund claim and fixed the personal hearing on 8.6.2015. Pursuant to the show cause notice dated 22.5.2015, the petitioner, by a letter dated 8.6.2015, submitted various documents as sought for by the third respondent and also provided the information that was sought for by the Deputy Commissioner. Certain other additional documents were also submi....
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....w has taken place or that it is likely to adversely affect the revenue. 3.1 The learned counsel submitted that while the authorities have power to withhold refund under section 39 of the GVAT Act, there is no power to suspend. It was pointed out that the impugned order suspends the order of provisional refund without there being any power vested in the respondents to suspend such order. According to the learned counsel, further proceedings would be post an assessment order and hence also, section 39 of the GVAT Act would have no application. It was also contended that the availability of an alternative remedy under the statute is no remedy, as the entire exercise is without jurisdiction, inasmuch as, there is no power vested in the authorities to pass such interim directions which are totally without jurisdiction. It was submitted that assuming for the sake of argument that section 39 of the GVAT Act is applicable; even then, powers thereunder have to be exercised by a higher authority and not the same officer. 3.2 In support of his submissions, the learned counsel placed reliance upon the decision of this court in the case of Kanak Fabrics v. Income Tax Officer, (2013) 359 ITR 4....
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....olding the refund has been passed and a copy thereof has been duly served upon the petitioner. Thus, prior to passing the impugned order, due procedure in accordance with law has been followed. It was submitted that the impugned order is an appealable order against which appeal lies to the Joint Commissioner under section 73 of the GVAT Act. Therefore, when there is an efficacious alternative remedy provided under the statute, this petition under Article 226 of the Constitution of India ought not to be entertained as otherwise, the remedy of appeal would become redundant. It was urged that the petitioner has committed serious irregularities in the conduct of his business insofar as compliance with the provisions of the GVAT Act is concerned and that in all likelihood huge recoveries will be required to be made from the petitioner and that the petitioner has no immovable properties in the State of Gujarat and hence it will be difficult to recover the amount sanctioned by way of provisional refund. It was, accordingly, urged that the petition being devoid of any merits deserves to be dismissed. 5. In the above backdrop, the rival contentions are required to be examined. Before adver....