2013 (11) TMI 1531

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....ssed by the Commercial Tax Officer - (4), Mehsana by which an order of reassessment has been passed by the Commercial Tax Officer directing the petitioner to pay an amount of Rs. 21,52,832/- towards the balance tax under the Gujarat Value Added Tax Act, 2003 (hereinafter referred to as "VAT Act") and also directed to pay 150% penalty i.e. Rs. 32,29,248/- and in all Rs. 73,19,630/-. 2. Facts leading to the present special civil application in nutshell are as follows : 2.1 That the petitioner is a dealer registered under the VAT Act. That the petitioner is excisable to tax on the basis of its turnover under the VAT Act. For the financial year 2006-07, the petitioner filed its return with the authorities under the Act. Such ret....

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....x, the petitioner is liable to pay balance of Rs. 21,52,832/- towards VAT. Consequently, by order dated 30-3-2013, the AO has passed the reassessment order directing the petitioner to pay the balance amount of Rs. 21,52,832/- along with interest up to 31-3-2013 and has also imposed the penalty at the rate of 150% i.e. in all Rs. 73,19,630/-. Feeling aggrieved and dissatisfied with the impugned order, the petitioner has preferred the present special civil application under Article 226 of the Constitution of India. 2.3 At the outset it is required to be noted that we are conscious of the fact that against the impugned order of reassessment the petitioner has a statutory remedy available by way of appeal however, considering the fac....

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....ty in favour of the AO and/or appropriate authority to pass reassessment order afresh in accordance with law and on merits. 4.1 Shri Parikh, learned advocate appearing on behalf of the petitioner has submitted that it may be observed that fresh reassessment order can be passed in accordance with law and only if the same is permissible under the law. 5. Having heard Shri Parikh, learned advocate appearing on behalf of the petitioner and Shri Gandhi, learned AGP appearing on behalf of the respondents and having gone through the impugned order passed by the AO, it appears that the reassessment order has been passed by the AO solely on the basis of show cause notice issued by the Excise Department. It can be seen that the assess....

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....o an independent opinion that there was in fact evasion of excise duty by clandestine removal of goods, he would have been justified in making additions for the purpose of VAT Act. In the present case, however, no such exercise was undertaken. All that the Assessing Officer did was to rely on the show cause notice issued by the Excise Department. Nowhere did he conclude that there was a case of clandestine removal of goods without payment of tax under the VAT Act. Merely because the Excise Department issued a show cause notice, that cannot be a ground to presume and conclude that there was evasion of excise duty implying thereby that there was also evasion of tax under the VAT Act. It is not even the case of the Department that such show ca....