TaxTMI 
TaxTMI 
2020 (2) TMI 297
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....tion under article 226 of the Constitution of India, the petitioner has prayed for the following reliefs : "9(A) Admit this Special Civil Application; (B) Your Lordships may be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction to refund Rs. 63,843/-with interest thereon still present with the Respondent No. 2 in the interest of justice; (C) This Hon'ble Court may be pleased to ask the Respondent to deposit the left out amount with the Registrar of this Hon'ble Court. (D) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case." 3. The facts giving rise to this petition may be summar....
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....ying with the respondent without any corresponding demand as no assessment order was passed for the year 2011-2012. As the respondent did not reply to such letter, the petitioner has approached this Court with the aforesaid prayers. 4.1. Mr.Digant Popat, the learned advocate for the petitioner submitted that for more than 8 years amount of Rs. 63,843/- is lying with the respondent and no assessment order for the year 2011-2012 is passed by the respondents. It was submitted that as per the provisions of Section 34 (2) of the VAT Act, 2003. The time period for passing an assessment as well as revised assessment is also over. 4.2. It was therefore submitted that the respondents are required to be directed to refund amount of Rs. 63,843/-....
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....ct, the respondent authorities are inclined to issue appropriate notice and carry out assessment proceedings in accordance with law. Hence, the refund as claimed by the petitioner is not paid by the respondent authorities till date." 5.1. It was submitted that in view of the aforesaid facts, the petitioner is not entitled to refund. 6. Having heard the learned advocates for the respective parties and having gone through the materials on record, we are at pain to pass this order directing the respondents to pay the sum of Rs. 63,843/- as far no rhyme or reason, the respondents are withholding the amount, which otherwise is refundable to the petitioner in absence of any assessment order for the year 2011-2012. 7. The respondents have....
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....e of an order of any court or authority, such fresh assessment shall be made at any time within two years from the date of such order: Provided further that in computing the period of limitation for the purpose this section, any period during which assessment proceedings are stayed by an order or injunction of any court or authority shall be excluded." 7.3. Admittedly, the respondents have not passed any order of assessment for the year 2011-2012, raising any demand against the petitioner. Therefore, the respondent authorities cannot retain the balance amount of Rs. 63,843/- (Rs. 83106-Rs. 19263). 7.4. Section 36 of the VAT Act, 2003, which provides for refund of excess payment reads as under : "36. Refund of excess ....
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....e refund in certain cases as prescribed in Section 39 of the VAT, 2003, which reads as under : "39. Power to withhold refund in certain cases. (1) Where an order giving rise to a refund is the subject matter of an appeal or further processing or where any other processing under this Act is pending and the Commissioner is of the opinion that grant of such refund is likely to adversely affect the revenue, he may, after giving the dealer an opportunity of being heard, withhold the refund till such time as he may determine. (2) Where a refund is withheld under subsection (1), the dealer shall be entitled to interest as provided under section 38, if as a result of the appeal or further proceeding he becomes entitled to....