TaxTMI 
TaxTMI 
2021 (2) TMI 249
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....o 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 respondent No.4 in declining to grant the refund of the amount recovered duri....
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....titioner 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 Affidavit in Reply, it is submitted that it is mentioned therein that respondent authorities had initiat....
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....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 for the year 2011-2012. 7. The respondents have withheld the refund contrary to the provisions of Section 36 of the VAT Ac....
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....m 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 for refund of excess payment reads as under : "36. Refund of excess payment (1) Subject to other provisions of this Act and the rules, the Commissioner may refund to a person the amount of tax,....
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....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 refund." 7.7. Thus, in view of above provision also the respondents cannot withhold the refund of amount deposited by the petitioner. 7.8. Reliance placed by the respondents on subse....