The court emphasized that the invocation of powers under section 75 for revision should not be used as an afterthought to thwart the proceedings of the writ petition and render the same futile.

Harsha Devani, J.

1. By this application, the applicant seeks review of the judgment and order dated 8.3.2016 passed by this court in Ganesh Sales Corpn. v. State of Gujarat [2016] 68 taxmann.com 243. It is the case of the applicant, as averred in the application, that the respondent herein had presented the captioned petition challenging the order dated 3.7.2015 passed by the Deputy Commissioner of Commercial Tax, Range 13, Nadiad and had prayed for disbursement of refund along with interest forthwith in terms of the provisional refund orders dated 18.2.2015 and 10.3.2015. It is further the case of the applicant that the respondent is a dealer registered under the provisions of the Gujarat Value Added Tax Act, 2003 (hereinafter referred to as the "GVAT Act") as well as under the Central Sales Tax Act, 1956. The respondent purchased cigarettes of various brands from the State of Gujarat and availed input tax credit in terms of section 11(3) of the GVAT Act and such cigarettes were purchased for the purpose of re- sale in the State of Gujarat and in the course of inter-state trade and commerce as well as for resale of the same within the State of Gujarat. That it was the case of the respondent that it was unable to utilise the entire amount of input tax credit availed on purchase of the cigarettes had, therefore, filed a provisional refund claim for Rs. 1,69,68,477/- on 17.11.2014 for the assessment period 1.7.2014 to 30.9.2014. It was the case of the respondent that he had submitted the requisite documents to show that the sales and the purchase of the goods and further transactions of inter-state nature were genuine. The concerned authorities had granted personal hearing to the respondent and by an order dated 18.2.2015, sanctioned the claim of provisional refund of Rs. 1,52,42,129/- for the assessment period 1.7.2014 to 30.9.2014, under section 37 of the GVAT Act.

2. It is further averred in the application that on the provisional refund being sanctioned by the applicants vide order dated 18.2.2015, the authorities by an order dated 10.3.2015 directed the Assistant Commissioner to sanction the provisional refund and, accordingly, the respondent approached the Assistant Commissioner of Commercial Tax, Nadiad to disburse the refund amount in the light of the orders dated 18.2.2015 and 10.3.2015. In the meanwhile, a show cause notice dated 22.5.2015 was issued calling upon the respondent to produce supportive documents with respect to its claim of provisional refund pursuant to which, the respondent produced the relevant documents on 8.6.2015 as well as 9.6.2015. That on due consideration of all the documents produced by the respondent, the applicant authorities withheld the amount of refund sanctioned provisionally by exercising powers under section 39 of the GVAT Act. That the respondent herein approached this court by way of the captioned petition challenging the order of withholding refund under section 39 of the GVAT Act. It is the case of the applicant that revision notices dated 23.2.2016 under section 75 of the GVAT Act have been issued to the respondent for reviewing and recalling the refund sanctioning orders dated 18.2.2015 and 10.3.2015 and that this court, by not considering the same, has directed the authorities to pay the claim of refund with respect of the amount of Rs. 1,69,68,477/-. Being aggrieved by the directions issued by this court to forthwith disburse refund along with interest to the original petitioner in terms of the provisional refund orders dated 18.2.2015 and 10.3.2015 on the ground that the same would render the proceedings under section 75 of the GVAT Act nugatory; the applicant has filed the present application for review.

3. Ms. Maithili Mehta, learned Assistant Government Pleader for the applicants, submitted that before this court passed the order dated 8.3.2016, a revision notice dated 23.2.2016 had been issued to the respondent in the exercise of powers under section 75 of the GVAT Act