TaxTMI 
TaxTMI 
TaxTMI 
2019 (9) TMI 236
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....rat Value Added Tax Tribunal in Second Appeal No.1346 of 2018 demanding pre-deposit of Rs. 7,00,000/- against the tax due of Rs. 37,59,325/- for admission of Second Appeal and grant of stay against recovery of dues in assessment for the year 2013-14 under the Gujarat Value Added Tax Act, 2003 ("the Act" for short). 2.02. By way of Special Civil Application No.10652 of 2019, petitioner - Harsh Chemicals has prayed for appropriate writ of certiorari or any other appropriate writ, order and/or direction quashing and setting aside the order dated 25/04/2019 passed by the Gujarat Value Added Tax Tribunal in Second Appeal No.60 of 2019 demanding predeposit of Rs. 85,00,000/- against the tax due of Rs. 21,21,10,184/- for admission of Second Appeal and grant of stay against recovery of dues in assessment for the year 2013- 14 under the Act. 3.00. Since in both the petitions same issue of predeposit is involved, Special Civil Application No.4424 of 2019 is treated as main petition and facts of the said petition are reproduced hereinbelow: 3.01. As per the case of the petitioner, the petitioner - S & H Chemicals is a Partnership Firm which was having place of business at 219, The Grand....
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....he respective petitioner - assessee has vehemently submitted that the input tax credit of purchases from one M/s.H.L. Enterprise has been disallowed on the ground that its registration certificate had been cancelled with retrospective effect. He has further submitted that in the assessment order it was neither alleged nor established that the purchase transactions of the petitioner were not genuine and it was not disputed. He has further submitted that even the copy of the order cancelling registration certificate of the vendor was never given to the petitioner and therefore, the impugned order of assessment itself is in violation of principles of natural justice. 4.01. Mr.Sheth, further submitted that now the business of the petitioners is closed down and the petitioners are facing financial hardship and they have no money to deposit. He has further submitted that however, the petitioners have managed to deposit Rs. 2,00,000/-, however, the tribunal has directed to deposit further amount of Rs. 5,00,000/-. 4.02. Mr.Sheth, learned counsel for the petitioners has further submitted that the petitioner has a strong prima facie case and therefore the orders of the appellate authori....
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....rt in the case of Shree Bhairav Metal Corporation v/s State of Gujarat (2015) 82 VST 324 (Guj.) and State of Gujarat v/s Modi Oil Industries Sales Tax Reference No. 2 of 2001 decided on 1.7.2016. It is contended that since the assessment order is passed in breach of principles of natural justice and is unsustainable, the petitioner has a strong prima-facie case and hence the orders of the appellate authorities demanding pre-deposit are arbitrary and illegal. It is contended that so far as the allegation of the learned appellate authorities that the petitioner has not been able to produce evidences of genuineness of transactions, for all its purchase transactions disputed as well as undisputed it has the same set of evidences being tax invoice and proof of payment through banking channels. It is contended that since the petitioner was a trader and the delivery took place in private vehicles of sellers or the buyers of the petitioner, there is no lorry receipt for even the undisputed purchases of the petitioner. However on the basis of tax invoice and payment proofs huge input tax credit of Rs. 31,99,47,695/- has been admittedly allowed in assessment. It is contended that Disallowanc....
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....ses and after giving an opportunity to the petitioner to prove the genuineness of the transaction between the petitioner and W5 Lucky Enterprises in light of the observations made herein above, therefore, the matter is required to be remanded to the adjudicating authority to consider the claim of the petitioner for ITC on the alleged purchases made by the petitioner from M/s Lucky Enterprises." 12. In the opinion of this court, the above decision would be squarely applicable to the facts of the present case. Having regard to the fact that at the time when the assessment order was made, the petitioners did not have the copies of the assessment orders made in the case of the vendors, the petitioners did not have any opportunity to prove the genuineness of such transactions." "15. In the light of the above discussion, the court is of the view that the petitioners have made out a strong prima-facie case in their favour. Under the circumstances, the Tribunal and the first appellate authority were not justified in directing payment of huge amount of pre-deposit for the purpose of admitting the appeal and staying recovery. 16. The petition, therefore, succeeds and is, accordingly....
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.... petitioners. He has contended that this Court has in the case of Shri Dalpatsinh Ukabhai Vasava v/s The Principal Commissioner of Income Tax-2 in Special Civil Application No. 9825 of 2019 has permitted furnishing of security instead of payment of pre-deposit. It is contended that the petitioners will be rendered remediless without intervention of this Court. Pursis dated 21/8/2018 submitted pursuant to the order dated 27/6/2019 placing on record valuation report along with the share certificate and purchase deed of the residential property where the partner of the petitioner is residing and which the said partner is ready to give the same as security for the purpose of hearing the appeals, is ordered to be taken on record. 4.08. Mr.Sheth, learned counsel for the petitioners has further submitted that the petitioner will be rendered remediless if this Court does not intervene since the appeal of the petitioners will not be heard on merits because of the inability of the petitioners in fulfilling the condition of predeposit. It is contended that on the other hand the revenue will not suffer even if the present petition is allowed since eventually if the petitioners fail in appe....
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....y Enterprises - seller has been cancelled ab- initio on the ground that the seller had involved into the billing activities only and all the transactions by M/s Lucky Enterprises are held to be bogus. The petitioner has been denied the ITC on the ground of the aforesaid activities/alleged transactions between the petitioner and M/s Lucky Enterprises. However, as observed herein above, the petitioner was not served with the copy of the order in the case of M/s Lucky Enterprises. Now, the copy of the order passed in the case of M/s Lucky Enterprises is available with the petitioner. Therefore, after giving an opportunity to the petitioner with respect to observations made in the case of M/s Lucky Enterprises insofar as the alleged transactions between the petitioner and M/s Lucky Enterprises and after giving an opportunity to the petitioner to prove the genuineness of the transaction between the petitioner and M/s Lucky Enterprises in light of the observations made herein above, therefore, the matter is required to be remanded to the adjudicating authority to consider the claim of the petitioner for ITC on the alleged purchases made by the petitioner from M/s Lucky Enterprises." 6.....