(D.Y. Chandrachud and M.R. Shah, JJ.)
Petition(s) for Special Leave to Appeal (C) No(s). 2279-2280/2021, decided on February 10, 2021
State of Gujarat and Another _______________________ Petitioner(s);
v.
J.K. Cement Ltd. __________________________________ Respondent.
(With I.R.)
Petition(s) for Special Leave to Appeal (C) No(s). 2279-2280/2021; SCA No. 15333/2019; and SCA No. 16288/2019
The Order of the court was delivered by
Order
1. The order of the High Court which is impugned in the Special Leave Petitions indicates the factual position that:
(i) The respondent was denied a C form in respect of an inter-State sale as a result of which a higher rate of tax was charged;
(ii) The respondent moved the Rajasthan High Court in a writ petition in which interim directions were initially issued on 20 February 2018 and subsequently on 18 May 2018 it was held that the refusal to issue a C form was contrary to law;
(iii) The High Court upheld the entitlement of the respondent, in consequence, to seek a refund; and
(iv) The State, as a matter of fact, has not disputed the refund which is due and payable.
2. Ms. Aastha Mehta, learned counsel appearing on behalf of the petitioners submits that the High Court has not considered the provisions of Section 36 of the Gujarat VAT Act 2003. Learned counsel sought to persuade the Court to take a fresh look at the correctness of the view of the High Court, urging that under Section 36, a refund can be granted to a dealer registered in the State and that assessment proceedings are pending against the registered dealer. It was urged that the respondent is not registered as a dealer in Gujarat and that a refund can be granted only to the registered dealer.
3. The High Court has met this submission of the State of Gujarat by ruling that the dealer has passed on the burden to the respondent and hence, to deny the claim of refund to the respondent despite the State not contesting in principle the liability to refund would be “hyper-technical”.
4. In view of the specific facts noted in paragraph 1 above, we decline to entertain the Special Leave Petitions. Having regard to the above facts and circumstances, we expressly keep open the interpretation of Section 36 to be urged by the State of Gujarat and decided by the competent forum in an appropriate case. Subject to the above clarification, the Special Leave Petitions are dismissed.
5. Since contempt proceedings are stated to have been filed against the authorities of the State, we extend time for complying with the order for refunding the amount due to the respondent by a period of four weeks from today.
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