(PER : HONOURABLE MR.JUSTICE M.R. SHAH) Page 1 of 5 C/SCA/1156/2015 JUDGMENT [1.0] RULE. Shri Chintan Dave, learned AGP waives service of notice of rule on behalf of the respondents.
[2.0] In the facts and circumstance of the case and with the consent of the learned advocates appearing on behalf of the respective parties, the present petition is taken up for final hearing today.
[3.0] By way of this petition under Article 226 of the Constitution of India the petitioner has prayed for an appropriate writ, order or direction to quash and set aside the impugned communication / letter dated 01/10/2014 passed by the Commercial Tax Officer, Vapi by which the request made by the petitioner to refund the amount of Rs.9,95,749/- and Rs.12,66,765/- as per the assessment orders passed under the Gujarat Sales Tax Act for the Financial Years 1999-00 and 2000-01 is rejected.
[4.0] Shri Uchit Sheth, learned advocate appearing on behalf of the petitioner has vehemently submitted that as such as per the assessment orders passed by the appropriate authority under the Gujarat Sales Tax Act for the Financial Years 1999-00 and 2000-01, the petitioner is entitled to the refund of Rs.9,95,749/- and Rs.12,66,765/-, which is denied to the petitioner on the ground that some reassessment proceedings have been initiated. It is submitted that as such the reassessment proceedings relying upon the decision of the Hon'ble Supreme Court in the case of Kothari Products Ltd. Vs. Government of Andhra Pradesh reported in 2000 STC (Vol.119) SC 554, which has no bearing at all are absolutely Page 2 of 5 C/SCA/1156/2015 JUDGMENT illegal. It is submitted that even the said reassessment proceedings to which the petitioner had already replied at the relevant time there is no final decision taken on the same. It is submitted that as such now even the reassessment would be illegal and without jurisdiction. It is submitted that as such what was required to be considered was the position of law prevailing at the relevant time when the petitioner sold the goods in question on inter state trade by purchasing from local dealer and thereafter selling it to the dealer of other State. It is submitted that therefore as such there is no justification at all not to refund the amount which the petitioner is entitled to as per the assessment orders for the Financial Years 1999-00 and 2000-01.
[5.0] Shri Chintan Dave, learned AGP has tried to oppose the present petition. He has opposed the present petition mainly on the ground of delay by submitting that the petitioner was entitled to the refund as per the assessment orders passed for the Financial Years 1999-00 and 2000-01 on 30/09/2003 and, thereafter the present petition has been filed. From the affidavit-in-reply it also appears that it is the case on behalf of the respondent that the reassessment proceedings are initiated as per the recommendation of the pre-audit department. However, there is no justification shown for not deciding the reassessment proceedings, which are pending since 2004.
[6.0] Heard the learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted and it is not in dispute that as per the assessment orders passed by the appropriate authority for the Financial Page 3 of 5 C/SCA/1156/2015 JUDGMENT Years 1999-00 and 2000-01, the petitioner is entitled to the refund of Rs.9,95,749/- and Rs.12,66,765/-. However, thereafter on the basis of the recommendation of the pre-audit department the reassessment proceedings are initiated, which are pending since 2004. No reasons whatsoever has been given for not deciding the reassessment proceedings, which are pending since 2004. Under the circumstances, to deny the refund, which the petitioner is entitled to as per the assessment orders for the Financial Years 1999-00 and 2000- 01 solely on the ground that the reassessment proceedings are pending since many years is absolutely illegal and most arbitrary. Hence, subject to the outcome of the reassessment, if at all it is permissible now, the petitioner is entitled to refund of the amount, which the petitioner is entitled to as per the assessment orders passed by the appropriate authority for the Financial Year 1999-00 and 2000-01. Now so far as the contention on behalf of the respondent that there is delay on the part of the petitioner and, therefore, the petitioner is not entitled to any relief in the present petition is concerned, it is required to be noted that as such there is no delay on the part of the petitioner at all. If at all there is any delay, there is a delay on the part of the appropriate authority to decide the reassessment proceedings, which are pending since 2004. There is no reason forthcoming for not concluding the reassessment proceedings, which are pending since 2004. If that be so, it is not open for the the State to take a plea of delay.
[7.0] In view of the above and for the reasons stated hereinabove, the present petition succeeds. The appropriate authority is hereby directed to refund the amount of Page 4 of 5 C/SCA/1156/2015 JUDGMENT Rs.9,95,749/- and Rs.12,66,765/- as per the assessment orders for the Financial Years 1999-00 and 2000-01 as per the applicable rate under the Act within a period of one month from today. However, the same shall be subject to the ultimate order that may be passed on the reassessment proceedings. It is made clear that we have not expressed anything on merits with respect to the ground on which the reassessment proceedings are initiated. Rule is made absolute accordingly to the aforesaid extent. No order as to costs.
(M.R. SHAH, J.) (S.H. VORA, J.) Siji Page 5 of 5