TaxTMI 
TaxTMI 
2021 (2) TMI 249
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....allow this petition; C. Your Lordships may be pleased to issue a writ of Mandamus or any other appropriate writ, order or direction holding the action of non-grant of refund of the amount collected without raising formal demand thereof by passing an order as illegal and arbitrary and Your Lordships may direct the Respondent No.3 to immediately pay refund of Rs. 14,61,850/along with interest at commercial rate for the period from the date it was recovered from the petitioner uptil the date on which the said amount is paid to the petitioner." 2. The writ applicant No.1 is a partnership firm and the writ applicant No.2 is one of the partners of the said firm. 3. The writ applicants seek to challenge the decision of the responden....
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.... the respondent authorities on 13/01/2016. However, it appears that the neither the petitioner nor any of its authorized representatives appear before the respondent authorities on 13/01/2016 for conducting assessment proceedings. Therefore, the respondent authorities were constrained to pass ex parte assessment orders in absence of the petitioner. Copies of the notices issued by the respondent authorities as well as the assessment orders passed in this regard are annexed hereto and marked as ANNEXUREA (colly)." 7. In answer to what has been stated in para 6 of the reply referred to above, the following has been stated in para 5.1 of the Rejoinder filed by the writ applicants to the reply : "5.1 In regard to para 06 of ....
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....vant assessment years. It could be said that such withholding of the refund is contrary to the provisions of the Section 36 of the VAT Act, 2003. 9. In the aforesaid context, we may refer to and rely upon the decision of this Court rendered in the case of Shilpa Industries Vs. State of Gujarat [SCA/540/2020], decided on 22.01.2020. We quote the relevant observations as under 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 ....
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....ded that where any assessment is required to be made in pursuance 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 20112012, 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 f....
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.... 7.6 It would also necessary to consider power to withhold the 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 ....
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.... 7.10. Therefore, in contemplation of invoking such provision for assessment without there being any satisfaction of the prescribed authority that the tax has been evaded etc. by the petitioner, the refund cannot be withheld. 8. The stand taken by the respondent No.2 in the affidavit-in-reply is clearly a bureaucratic approach and redtapism, whereby the citizen of this country has to approach this court for getting legitimate refund. It is expected from the State machinery not to harass the citizen of this country in such a manner compelling them to approach to the Highest Court of the State for getting refund amount, which otherwise cannot be withhels for a minute without there being any authority with the respondent. ....