M/S MICRO INKS LIMITED vs. STATE OF GUJARAT

PDF · subscribers
SCA/8571/2021HC GujaratGJHC24024782202114 July 2021Bench: HONOURABLE MS. JUSTICE BELA M. TRIVEDI,HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI5 pages
AI SummaryDismissed

What did the High Court hold?

The High Court held that the petitioner's submissions lacked substance. It was noted that the petitioner did not raise any objection regarding the non-grant of interest under Section 38(2) of the Act after the appeals were disposed of. Crucially, the orders passed in appeals for all three assessment years were subsequently taken into revision by the Additional Commissioner (Investigation) under Section 75 of the Act. This revisionary order imposed an additional liability on the petitioner to pay tax and interest. The petitioner, availing of an Amnesty Scheme, paid the tax amount and was granted remission for the interest. The court reasoned that since the appellate order was revised, and the petitioner was found liable to pay additional tax and interest, the question of invoking Section 38(2) for refund interest did not arise. The petitioner was not entitled to any refund by virtue of the revisionary orders; rather, they were liable to pay. Therefore, the invocation of Section 38(2) was considered misplaced. The petitions were dismissed.

What were the facts?

The petitioner, M/s. Micro Inks Limited, filed three Special Civil Applications challenging orders related to assessment years 2006-07, 2007-08, and 2008-09. For the assessment year 2006-07, an assessment order dated March 8, 2011, initially ordered a refund of Rs. 52,34,506/- with interest. An appeal led to a revised refund of Rs. 93,59,863/- paid on December 27, 2017. Subsequently, an order under Section 75 of the Gujarat Value Added Tax Act, 2003, directed the petitioner to pay Rs. 1,20,709/- tax and Rs. 2,69,785/- interest. The petitioner paid the tax amount and received remission for the interest. The petitioner then filed a rectification application on July 11, 2018, seeking interest under Section 38(2) of the Act on the refund amount, which was rejected on August 19, 2020, due to the expiry of the two-year period for filing such applications.

What were the issues?

1. Whether the respondent No. 2, while passing the appellate order dated August 30, 2017, was obliged to award statutory interest under Section 38(2) of the Gujarat Value Added Tax Act, 2003, on the additional refund amount, even if not specifically demanded by the petitioner? Assessee's Contention: The petitioner argued that the appellate authority was bound to award interest under Section 38(2) of the Act on the additional refund, and its failure to do so necessitated the rectification application. They contended that the rejection of the rectification application was based on extraneous considerations. Revenue's Contention: The revenue did not explicitly record arguments in the judgment. However, the court's reasoning implies that the revenue's position, as accepted by the court, was that the subsequent revisionary order superseded the appellate order, and the petitioner was liable to pay tax and interest, not entitled to a refund with interest.

Which sections of the Income-tax Act were involved?

Section 38(2),Section 75,Section 42(6),Section 79,Section 38(1)

AI-generated summary — verify with the full judgment below

C/SCA/8571/2021 ORDER DATED: 14/07/2021 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 8571 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 8607 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 8947 of 2021 ======================================= M/S MICRO INKS LIMITED Versus STATE OF GUJARAT ======================================= Appearance: MR D K TRIVEDI(5283) for the Petitioner(s) No. 1 for the Respondent(s) No. 1,2,3,4 ======================================= CORAM: HONOURABLE MS. JUSTICE BELA M. TRIVEDI and HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

Date : 14/07/2021

COMMON ORAL ORDER (PER : HONOURABLE MS. JUSTICE BELA M. TRIVEDI) 1. All the petitions having been filed by the same petitioner – M/s. Micro Inks Limited (presently known as Huber Group India Private Limited), involving the same issue, were heard together and hence, the common order is being passed. 2. For the sake of convenience, the facts of Special Civil Application No. 8571 of 2021 are taken into consideration. 3. The petitioner has prayed for the following reliefs as contained in paragraph 10 of the petition: “A. Your Lordships may be pleased to admit this petition; Page 1 of 5

C/SCA/8571/2021 ORDER DATED: 14/07/2021 B. Your Lordships may be pleased to allow this petition; C. Your Lordships may be pleased to issue by respondent No. 4 declare the letter rejecting the rectification application to be illegal and arbitrary issue writ of mandamus or any other appropriate writ directing the Respondent No. 02 and 03 to pay amount of interest @ 6% PA on the refund amount in accordance with Section 38(2) (supra) in regard to the period starting from the date immediately following the date of closure of accounting year to which the refund relates till the date of payment of amount of said refund amount along with a further interest on the said interest amount @ 6% PA for the period starting from the date of refund payment order uptil the actual date of payment of interest; D. Your Lordships may be pleased to grant an ex-parte, ad interim order in favour of the petitioner herein in terms of prayer clause ‘C’ hereinabove; E. Your Lordships may be pleased to grant such other and further relief/(s) that may be deemed fit and proper in the interest of justice in favour of the Petitioner.” 4. The facts, as emerging from the petition, are that the petitioner is incorporated under the provisions contained in the Companies Act, 1956. The Assessment Order for the Financial Year 2006-07 was passed on 08.03.2011 in Form-304 by the Deputy Commissioner of Commercial Tax (Corporate-2), Gujarat State, Ahmedabad, according to which, refund amounting to Rs.52,34,506/- along with interest under section 38(1) of the Gujarat Value Added Tax Act, 2003 (herein after referred to as “the said Act”) amounting to Rs.12,03,936/-, aggregating to Rs.64,38,442/- was ordered to be paid. Since the amount of Input Tax Credit (ITC) was disallowed in the said order, the petitioner had preferred an appeal before the respondent No. 2. The said appeal came to be allowed by the respondent No. 2 vide order dated 30.08.2017 by which, refund of Rs.93,59,863/- was directed to be paid to the petitioner. The said amount of refund, Page 2 of 5

C/SCA/8571/2021 ORDER DATED: 14/07/2021 pursuant to the order passed by the respondent No. 2, was paid vide the order dated 27.12.2017. According to the petitioner, in the meantime, the issue with respect to the double reversal of VAT credit on purchase of Fuel was settled in case of Reliance Industries Limited by the Supreme Court in favour of the department and therefore, pursuant to the said order, the Additional Commissioner (Investigation), Ahmedabad passed an order under section 75 of the said Act by which, the petitioner was directed to make payment of tax of Rs.1,20,709/- as also Rs.2,69,785/- towards interest under section 42(6) of the said Act. As mentioned in the said order dated 21.07.2020 itself, the petitioner had paid Rs.1,20,709/- in view of the benefit of remission granted to it. Subsequently, a remission order came to be passed in respect of the payment of interest amount of Rs.2,69,785/- vide order dated 21.07.2020. As per the case of the petitioner, the respondent, while passing the order in the appeal on 30.08.2017, had not passed any order for payment of interest under section 38(2) of the said Act and therefore, the petitioner had made an application for rectification of the order under section 79 of the said Act on 11.07.2018. The said application came to be filed by the respondent No. 2 vide communication dated 19.08.2020, Annexure ‘G’ on the ground that two years had already expired to the filing of the application for rectification and the order dated 21.07.2020 in revision was passed by the Additional Commissioner (Investigation) for the three years i.e. 2006-07, 2007-08 and 2008-09. The petitioner, being aggrieved by the said order, has preferred the present petition. 4.1 Similar proceedings and similar orders were passed in respect of the Assessment Years 2007-08 and 2008-09 for which, Page 3 of 5

C/SCA/8571/2021 ORDER DATED: 14/07/2021 Special Civil Application Nos. 8607 of 2021 and 8947 of 2021 respectively, have been filed by the petitioner. 5. The bone of contention raised by learned advocate Mr. D. K. Trivedi for the petitioner, relying upon the provisions contained in section 38(2) of the said Act, is that the respondent No. 2 had passed the order dated 30.08.2017 in appeal with regard to the additional refund payable to the petitioner, however, had failed to award statutory interest as per section 38(2) of the said Act. It is submitted that while passing the order in appeal, the respondent No. 2 was obliged to pass the order with regard to the interest on the additional amount of refund under section 38(2) of the said Act even though not demanded, and therefore, the rectification application was preferred by the petitioner, which has been filed by the impugned communication on extraneous consideration. 6. The Court does not find any substance in the above submissions made by learned advocate Mr. Trivedi for the petitioner. It is not disputed that the petitioner had not raised any objection with regard to the non-grant of interest on the additional refund amount, under section 38(2) of the said Act after the appeals were disposed of. The orders passed in appeals for all the three years of assessment under consideration, were taken into revision by the Additional Commissioner (Investigation), Ahmedabad under section 75 of the said Act, whereby, the additional liability of the petitioner for the year 2006-07 to pay tax to the tune of Rs.1,20,709/- and interest to the tune of Rs.2,69,785/-, in aggregate Rs.3,90,494/- was imposed. Similar liability was imposed for the other two years. It is not disputed and even otherwise stated in the orders passed in revisions, the petitioner, taking advantage of the Amnesty Page 4 of 5

C/SCA/8571/2021 ORDER DATED: 14/07/2021 Scheme, had made payment of the tax amount only and the petitioner was granted the remission for the interest amount as per the order dated 21.07.2020. The order passed by the appellate authority having been revised by the revisional authority as per the order dated 21.07.2020, the question of invoking the provisions contained in section 38(2) of the said Act did not arise. It is needless to say that as per the provisions of section 38(2) of the said Act, a registered dealer entitled to refund in pursuance of any order other than referred to under sub-section (1) or in pursuance of any order by any Court, would be entitled to receive, in addition to the refund, simple interest, as mentioned in the said sub-section (2). So far as the present cases are concerned, by virtue of the orders passed in the revisions, the petitioner was not entitled to any amount of refund and on the contrary, was liable to pay additional amount of tax with interest. There being no order passed by the revisional authority for refund of any amount, nor any order passed by any other Court, invocation of sub-section (2) of section 38 of the said Act by learned advocate Mr. Trivedi for the petitioner is thoroughly misplaced. 7. In that view of the matter, all the petitions being devoid of merits, are dismissed. [ Bela M. Trivedi, J. ] [ A. C. Joshi, J. ] hiren Page 5 of 5

More judgments on Section 38(2)

All 61 judgments and leading authorities on Section 38(2) →

Recent GST High Court judgments

Search GST case law →