TaxTMI 
TaxTMI 
2017 (10) TMI 425
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.... before this Court through their proprietory concerns. The proprietor of petitioner No. 2, petitioner No. 3, petitioner No. 4 and petitioner No. 5 concerns Govindsingh, expired after filing of petition and on 15.12.2016, his two sons are brought on record as his heirs by the petitioners. Those two sons independently are also parties before this Court as proprietor of petitioner No. 1 concern and proprietors of Respondent Nos. 6 & 7 concerns. 3. The challenge in this writ petition is to omission by respondent No. 2 to look into the requests made by the petitioners respectively on 24.08.2012, 21.02.2013, 18.09.2013, 18.03.2014 and one application dated 07.02.2015. They pray that before proceeding further with the proceedings for assessment in terms of notice dated 06.06.2012, these applications moved by them must be decided. 4. Notice dated 06.06.2012 is issued by respondent No. 2 under subsection (2), (3) or (4) of Section 23 of the Maharashtra Value Added Tax Act, 2002, (hereinafter referred to as 2002 Act) calling upon the petitioners to show cause as to why they should not be assessed under subsection (4) of Section 23 of the 2002 Act. The petitioners have replied to these noti....
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....tion for amendment was allowed. On 02.12.2016, legal heirs were permitted to be brought on record. On 17.01.2016, when the matter was called out, the learned AGP sought time. On 27.06.2017, this Court recorded its prima facie finding that the matter was being unnecessarily delayed by the respondents. The matter was directed to be listed on 04.07.2017. Again, there were two adjournments and on 01.08.2017, both parties sought adjournment. It appears that thereafter reply was filed by the respondents and the matter was taken up for hearing on 01.09.2017. It needs to be noted that the respondents were given liberty to take suitable decision on pending applications by very first order of this Court, however, that decision has not been taken till date. 7. Inviting attention to these dates and events, Shri Bhangde, learned Senior Advocate, submits that under Section 23(4), the petitioners can be subjected to assessment, if they are found to be dealers. Inviting attention to definition of "dealer" contained in Section 2(8), it is urged that the respondents have to demonstrate that the petitioners are in business of buying or selling goods. According to him, there is no such material and m....
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....e non genuine, he should not be assessed. If he is found to be partly genuine, only genuine part can be assessed. In this communication, it is pointed out that if the Assessment Officer has assessed non genuine purchases, it does not entitle the beneficiaries to claim set off. As in notice dated 14.03.2014, the petitioners are treated as unregistered dealers, submission is, they are not genuine dealers and, therefore, cannot be assessed. It is pointed out that on 01.03.2014 itself Sale Tax Deputy Commissioner (Vigilance) has asked all his subordinates to follow said guidelines. Even on 07.02.2015, the application was moved inviting attention to pending request/ application and sale tax authorities were requested to decide the same. 11. For the Assessment year 2008-09, receipt of intimation dated 15.10.2013 from the Sales Tax department, is relied upon to urge that even Incometax Department has found that assessee - petitioner has not shown any sales or turnover as against the total credits appearing in the Bank accounts worth Rs. 3,27,61,780/. He contends that this order of assessment, therefore, supports the contention of the petitioners that they are not dealers and assessment p....
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.... of Sales Tax to give the "dealer" a reasonable opportunity of being heard and proceed to assess him where the Commissioner has reason to believe that said dealer is liable to pay tax and has failed to do so or has failed to apply for registration. 15. It is in the backdrop of these provisions that this controversy needs to be looked into. 16. Vide notice dated 06.06.2012, inquiry under Section 23(4) of the 2002 Act was taken up against the petitioners. In reply to this notice, the petitioners have on 28.06.2012 claimed that they cannot be treated as a dealers. The other reply given on 24.08.2012 shows that burden of proving prejudice or sale of goods by the petitioners is upon the department. It is contended that mere statement in Bank account opening forms, registration under Shops and Establishment Act and entries in Bank accounts, cannot prove that the petitioners bought or purchased goods. The specific defence raised is, the petitioners opened bank account at the instance of mediators, who promised to pay commission. They used to bring cheques payable in the name of their account and withdrew the amount thereof in cash immediately within an hour or so after receiving credit.....
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....an Income Tax assessment order for the Assessment Year 200809 and in that year total credits during the financial year 200708 in proprietory concerns viz. Kunal Steel Enterprises, M/s. Shiom Enterprises, M/s. Shree Sai Traders, M/s. Vishal Trading and Umesh Singh G. Banaffar, are shown to be Rs. 3,27,61,780/. Different bank account numbers are also given. The assessment order shows that case was reopened under Section 148 of the Income Tax Act, 1961. This assessment order also takes note of contention of the assessee that he was doing job of book writing and indulged in giving accommodation entries to mediators. In this order, information obtained from the Shop and Establishment authorities in relation to nature of business of these concerns reveals that it was as retail traders in iron and steel, trading for hardware etc. The office of the Labour Commissioner informed that no information regarding these proprietory concerns was available in his office and on further inquiries no such establishment was found. In this backdrop, the Income-tax authorities have accepted that the assessee indulged in giving accommodation entries and then determined the income at Rs. 2,46,423/. Further ....