Banaskantha District Co-Op Milk ... vs Commissioner Of Commercial Tax
2021 Latest Caselaw 18691 Guj

     C/SCA/16455/2021                           ORDER DATED: 23/12/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 16455 of 2021

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     BANASKANTHA DISTRICT CO-OP MILK PRODUCERS UNION LTD.
                            Versus
              COMMISSIONER OF COMMERCIAL TAX
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Appearance:
DARSHAK N TRIVEDI(9276) for the Petitioner(s) No. 1
MR ASIM PANDYA, with MR JAY S SHAH(7244) for the Petitioner(s) No. 1
MS MAITHILI MEHTA, ASST. GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1,2,3
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 CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
       and
       HONOURABLE MS. JUSTICE NISHA M. THAKORE

                            Date : 23/12/2021

                        ORAL ORDER

(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)

1. The petitioner is a Registered Co-operative Society and

the members of society are the farmers who are seeking

issuance of appropriate writ seeking the refund of an excess

tax lying with the respondents as the assessment proceedings

for the assessment year 1996-97 to 1999-2000 have been

quashed and set aside by the order dated 11.05.2009 in the

Revision Applications No. 83 to 86 of 2006 on the ground of

proceedings being beyond the period of limitation prescribed

under Section 67 of the Act. The period prescribed for

limitation is three years. Such order came to be confirmed up

to the High Court and there was a direction to the respondent

C/SCA/16455/2021 ORDER DATED: 23/12/2021

authority to decide the pending assessment for the

assessment years 2000-01 and 2001-02 as per the order dated

11.05.2009 passed by the Tribunal in Revision Applications

No. 87 and 88 of 2006.

2. The prayers sought for are as follows:-

"(A) This Hon'ble Court may be pleased to admit and allow this petition;

(B) This Hon'ble Court may be pleased to issue appropriate writ, order or direction directing the respondent authorities to refund the excess tax lying with the department along with the statutory interest for the AY 1996-97 to 1999-00, as the assessment for this years are quashed and set aside by the Ld. Tribunal in the Revision Application No. 83 to 86 and the order is upheld by the High Court;

(C) This Hon'ble Court may be pleased to direct the respondent authorities to decide the remanded assessment for the AY 2000-01 & 2001-02 as per the order Dt. 11/05/2009 passed by the Ld. Tribunal in the Revision Application No. 87 & 88;

(D) Pending admission, hearing and final disposal of this petition, the respondent authorities may be directed not to take any coercive steps for recovery of assessed tax as per the Tax order Dt 09/11/2020 & Tax order 04/01/2021 for the AY 2004-05 as the same can be deducted from the excess tax lying with the department subject to the right of the petitioner to challenge the assessment before appropriate forum;

(E) This Hon'ble Court may be pleased to grant such other and further relief and/or order in the interest of justice in favour of the petitioner;

(F) This Hon'ble Court may be pleased to dispense with the filing of the affidavit in support of the petition in view of the ongoing Covid-19

C/SCA/16455/2021 ORDER DATED: 23/12/2021

Pandemic."

2.1. The petitioner is engaged in a co-operative movement

and is essentially concerned with the amount of refund along

with statutory interest for the assessment years 1996-1997 to

1999-2000. For these years, the Tribunal in Revision

Applications No. 83 to 86 has quashed and set aside the

assessment and the said order of the Tribunal has been

upheld by this Court.

2.2. So far as the remanded assessment 2000-01 and 2001-02

is concerned, vide order dated 11.05.2009, in Revision

Applications No. 87 and 88, the request is made for expediting

the process.

3. We issued notice for final disposal and the reply is

already filed by the Assistant Commissioner of State Tax

denying all averments however, he has not disputed that the

High Court has upheld the order passed by the Tribunal in

Revision Applications No. 83 to 86 so far as the assessment

years 1996-1997 to 1999-2000 are concerned. It is also not in

dispute that for the two years 2000-01 and 2001-02, the

remanded assessments are pending with the authorities

concerned. By different installments from 09.03.2004 to

09.08.2004 the amount of Rs. 5 Crores had been paid by the

C/SCA/16455/2021 ORDER DATED: 23/12/2021

petitioner on provisional assessment basis. Once, search was

carried out, the refund of the said amount is sought.

3.1. According to the respondent, the Revisional Authority

issued notice on 27.02.2006 for duly considering the matter

for the assessment years 2000-01 and 2001-02. They are

pending and the order shall be passed within a period of 12

weeks from the date of the order as may be passed in the

present petition. For this period of 2000-01 and 2001-02, the

amount of Rs. 1,62,34,172/- have been tentatively considered

by the authority in calculation-sheet as the taxable amount

from the gross refundable amount of Rs.3,37,65,828/- and the

same has been deducted. It is to be noted that the emphasis

on the part of the respondent is that the recalculation of the

refund amount which has been given by way of a separate

annexure indicates that the time period of litigation from

28.02.2006 to 13.09.2013 would need to be omitted in

calculating the interest on refund at 9%.

4. We have heard learned Senior Advocate Mr. Asim

Pandya assisted by learned advocate Mr. Jay Shah who has

draw our attention to the fact that the application under

Section 5 of the Limitation Act was preferred by the State of

Gujarat for condoning the huge delay of 1487 days in

C/SCA/16455/2021 ORDER DATED: 23/12/2021

preferring the Tax Appeals against the judgment and order

passed by the Gujarat Value Added Tax Tribunal, Ahmedabad

in Revision Application No. 88 of 2006. The Tribunal

remanded the matter to the Revisional Authority and directed

it to decide the matter afresh on the issue of pooling method,

purchase of oil seeds by the respondent society from farmers

and members. On the issue of limitation, this Court was not

with the Revenue and accordingly, had rejected the

application and dismissed the same denying to condone the

delay of 1487 days.

4.1. He has urged that at the best the period for preferring of

the revision is 60 days and hence, even if it was not

entertained, at the best, the State would get the 60 days'

period for omitting the payment of interest, however, if there

is a huge delay, which has also not been condoned by the

Court from 28.02.2006 to 13.09.2013, that surely cannot be

the ground for the respondent to deny him the interest on the

refund amount which is otherwise the entitlement of the

petitioner. He has no objection to the pending revision matter

to be decided within the time period as has been requested

for. A separate statement showing the calculation of the

tentative refund has also been furnished by the petitioner.

C/SCA/16455/2021 ORDER DATED: 23/12/2021

5. Learned Assistant Government Pleader Ms. Maithili

Mehta has adhered to the statement of calculation of the

tentative refund and has urged that the litigation period from

28.02.2006 to 13.09.2013 shall need to be essentially omitted

and she has also made a request for grant of 12 weeks' time

for completing the hearing in the remanded matters.

6. Noticing the pleadings as well as the detailed calculation

furnished by both the sides, at the outset, when there is no

dispute with regard to the remanded matters which are yet

pending and not decided by the authority and when the time

period sought is of the matters concerning assessment years

2000-01 and 2001-02, let the same be finalized within a period

of eight (8) weeks from the date of receipt of copy of this

order.

7. We noticed that the order to deposit the sum of Rs. 5

Crores was by way of an order dated 20.02.2004. The same

had been deposited in different installments as permitted by

the Commissioner. The last such installment was made by the

petitioner on 09.08.2004 and in the Revision Applications No.

83 to 86, the Tribunal had quashed the SMR proceedings for

the assessment years 1996-97 to 1999-2000. This order of

11.05.2009 was eventually challenged, as mentioned, in the

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year 2013.

7.1. The petitioner had made several representations. First of

its kind was seeking the refund on dated 31.12.2009 and

thereafter, on different dates, such request had followed.

Since the challenge to the order of Revisional Authority by

preferring the application under Section 5 of the Limitation

Act has not succeeded on 13.09.2013, again such request was

reiterated and yet, no heed was paid. Resultantly, the Court is

of the opinion that the amount of refund as calculated by the

State has a fallacy of excluding the interest of litigation

period. The available statutory period of 60 days shall need to

be excluded and not any other period by which the delay is

caused by the State in preferring such litigation. Calculating

accordingly the interest on an amount of Rs. 2,29,27,962/-

(Rupees Two Crore Twenty-Nine Lakh Twenty-Seven

Thousand Nine Hundred Sixty-Two only) be refunded to the

petitioner.

8. Resultantly, the petition is ALLOWED. The amount to be

refunded to the petitioner. For the Assessment years 1996-97

to 1999-2000, the Revision Applications No. 83 to 86, this will

include the amount of Rs. 1,62,34,172/- calculated in relation

to those Revision Applications which are remanded to the

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Revisional Authority and the said amount shall be subject to

the final outcome of those revisions. The remaining amount of

Rs. 2,29,27,962/- (Rupees Two Crore Twenty-Nine Lakh

Twenty-Seven Thousand Nine Hundred Sixty-Two only) be

refunded within a period of two (2) weeks from the date of

receipt of copy of this order. Any further time period if is

taken for the refund, the interest shall start running from

04.12.2021 till the date of payment.

9. If there are any litigations pending before any Court in

relation to the amount calculated, subject to the final outcome

of the same, this refund order shall be governed.

(SONIA GOKANI, J)

(NISHA M. THAKORE,J) Bhoomi