TaxTMI 
TaxTMI 
2016 (7) TMI 286
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....he Gujarat Value Added Tax Act ['the Act' for short] claiming refund of Rs. 7.63 lacs (rounded off). According to the petitioner, such refund was not released on the premise that the same would be carried forward in the next year and would be adjusted towards the petitioner's tax liability. However, for the assessment year 2007-08 also the petitioner had claimed refund of Rs. 35.15 lacs (rounded off) which was also not granted by the department. Assessments for both the assessment years 2006-07 and 2007-08 became time barred. The right of the petitioner to seek refund therefore crystallized. Despite this, since no refund was released, the petitioner filed Special Civil Application No. 11616 of 2012 which came to be disposed of b....
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.... that in the order of assessment dated 06.03.2016, the petitioner has been granted tax credit of Rs. 35,13,383/- for the assessment year 2007-08 which was not payable to the petitioner since the petitioner was covered by the composition tax regime and, therefore, was not entitled to any input tax credit. This notice the petitioner has challenged in the present petition. 3. Counsel for the petitioner submitted that the authorities have committed a serious error in treating the petitioner's refund of Rs. 35,13,883/- with interest of Rs. 8,11,642/- as its input tax credit. Such sum was never in the nature of tax credit. It was not so claimed by the petitioner nor granted by the Assessing Officer. It was only on account of the fact that ....
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....rue character of the said sum payable to the petitioner. It was and remained a refund due and payable. The sum of Rs. 8,11,642/- shown by way of interest of such refund also, therefore, had a direct co-relation to the petitioner's claim of refund of the past excess taxes paid to the department. These facts clearly emerge from the record as well as in the additional affidavit dated 28.06.2015 filed by the petitioner in which, following averments have been made: "1. I am filing this Additional Affidavit to bring certain factual aspects on record and to assist the Hon'ble Court in the aforesaid petition. I state and submit that for the year 2006-07 there was an amount of refund due to the extent of Rs. 7,63,106/- on account of tax p....
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.... being an amount of Rs. 8,11,642/- and total refund payable was Rs. 42,65,438/-. A separate Chart indicating the amount of refund is attached herewith as Annexure R1." 6. The Deputy Commissioner of Commercial Tax, therefore, committed a serious error in treating such refund as input tax credit claimed by the petitioner. It is true that the petitioner has opted for composition of tax and, in such situation, would not be entitled to claim any input tax credit. However, when the petitioner had not in fact claimed any such credit and the sum of Rs. 35,13,883/- shown in the order of assessment for the assessment year 2008-09 was in fact the refund of the earlier years, the very basis for the Deputy Commissioner to issue impugned notice dated ....