AI Drafter - (New and Powerful) 
Generate professional replies, appeals, opinions to Show Cause Notices, assessment orders, audit objections, and other legal communications using TaxTMI's AI Drafter. 
TaxTMI 
TaxTMI 
2020 (1) TMI 265
X X X X Extracts X X X X
X X X X Extracts X X X X
....made to the facts as appearing in Special Civil Application No.19147 of 2019. 3. The petitioner No.1, a partnership firm, started business of development, construction and sale of flats in the year 2014-15. It is the case of the petitioners that they bona fide believed that they were selling immovable property and therefore, neither obtained registration under the Gujarat Value Added Tax Act, 2003 (hereinafter referred to as the "GVAT Act") nor paid any tax thereunder. 4. On 12.4.2017, there was a search at the scheme, that is, M/s. Garden City by the authorities of the Commercial Tax Department. On getting the news of the search proceedings at M/s. Garden City, the petitioners obtained legal advice and were told that the petitioners being contractors were required to take registration and pay tax under the GVAT Act insofar as units agreed to be sold prior to the completion of construction. The petitioners, thereafter, immediately applied for and obtained voluntary registration certificate under the GVAT Act on 20.4.2017 wherein, it was clearly mentioned that there turnover had exceeded the threshold limit in the year 2014. Pursuant to the application, the petitioners were gr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed to declare self-assessed liability and also give an undertaking to pay any further liability under the GVAT Act. The last date for making an application under the amnesty scheme was 15.11.2019. 8. On 16.9.2019, that is, the date fixed for hearing by the second respondent, the petitioners informed the second respondent that they were desirous of availing benefit of amnesty scheme and that they were awaiting availability of the requisite forms for making such application and requested him to keep the assessment proceeding in abeyance. The petitioners simultaneously wrote letters to the superior authority requesting that the assessment proceedings may be kept in abeyance since they were desirous of taking benefit of the amnesty scheme. However, the second respondent rejected the request of the petitioners and proceeded to pass an assessment order dated 27.9.2019 under section 34(8) of the GVAT Act. In the impugned order, the second respondent has observed that the case of the petitioners is an enforcement case and that the petitioners are not entitled to the benefit of the amnesty scheme. It is the case of the petitioners that a very high pitched assessment has been made on the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n the State Government had come up with an amnesty scheme, and the petitioners had requested the second respondent to keep the assessment proceedings in abeyance, the second respondent was not justified in proceeding to make a high pitched best judgment assessment, thereby affecting the right of the petitioners under the amnesty scheme. It was submitted that pending assessment, the petitioners were required to file application under the amnesty scheme on the basis of self assessment and the respondent authority would thereafter, determine the amount of tax payable by the petitioners; whereas, in view of the high pitched assessment made by the respondent, now that there is an assessment order against the petitioners, if they want to avail the benefit of the amnesty scheme they would have to admit the huge liability under the assessment order. Therefore, the respondent by making the impugned order has more or less deprived the petitioners of the right to get the benefit under the amnesty scheme. 11.1 It was further submitted that the petitioners have always co-operated with the authority and that even after the notice was issued for fixing the hearing on 16.9.2019, the petitioners....
X X X X Extracts X X X X
X X X X Extracts X X X X
....re, the attention of the court was invited to the provisions of the Tax Amnesty Scheme, 2019 issued by the State Government vide Government Resolution dated 11.09.2019 and more particularly to paragraph 5 (2) thereof, which is a specific provision for entertaining applications under the amnesty scheme in case of enforcement cases. It was submitted that apart from the fact that the petitioners case is not an enforcement case, assuming for the sake of argument that it is an enforcement case, even then the benefit of amnesty scheme is available and hence, the second respondent was not justified in holding that the petitioners are not entitled to the benefit of the scheme. 11.4 It was further submitted that while making the impugned assessment order, it was not permissible for the Assessing Officer to adjudicate on the question as to whether or not the petitioners were entitled to the benefit under the amnesty scheme. It was accordingly urged that the impugned order being without jurisdiction and having been passed in breach of principles of natural justice and with a view to overreach the process of law and to deprive the petitioners of the benefit of the amnesty scheme, deserves t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s for the respective parties. The facts are not in dispute. A search was carried out at the premises of M/s. Garden City pursuant to which, the petitioner No.1 got itself registered under the provisions of the GVAT Act and voluntarily offered to pay the tax liability. A notice dated 29.5.2017 came to be issued in form-401 under rule 48 of the Gujarat Value Added Tax Rules, 2006. Since the said notice had been issued by the Commercial Tax Officer, Range-21, Junagadh, who, according to the petitioners, did not have the jurisdiction to assess the petitioners; the petitioners submitted a reply dated 20.6.2017 challenging the jurisdiction of the said officer to assess the petitioners. Thereafter, another notice dated 22.6.2017 came to be issued by the second respondent in response to which the petitioners, by a communication dated 7.7.2017, once again raised the question of jurisdiction. Thereafter, there was no response from the respondent. By a communication dated 15.7.2019 the petitioners informed the jurisdictional officer viz. the Commercial Tax Officer, Ghatak-85, Junagadh that they voluntarily want to pay the tax and requested him to generate URD assessment task. Thereafter, the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Tax Act, Value Added Tax Act, Central Sales Tax Act, Motor Spirit Taxation Act, Entry Tax Act and Sugar Cane Purchase Tax Act. As a result considerable recoveries of the amounts involved in such cases were outstanding. Various business associations in the State had made representations for expeditious and effective disposal of such old cases. By this scheme the Government will get the amounts of old pending recoveries, the business segment will get a huge relief and the administrative cost of the Government will be reduced. Considering this submission a proposal had been made for introducing the Amnesty Scheme. Under this scheme, the outstanding recoveries under the above enactments are to be covered. 16. Thus, the object of the amnesty scheme is to bring about expeditious and effective resolution of old disputes and recoveries of old outstanding dues of the Government and reduction of administrative costs. Since such scheme is applicable to all pending cases, the officers acting under the relevant statutes are expected to respect the object of the scheme and to ensure that the assessees get the benefit under the scheme. Therefore, when a bona fide request is made by an assessee....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e eligibility of the petitioners' to make an application under the amnesty scheme. In the impugned assessment order, the second respondent has observed that the petitioners' cases are enforcement cases and the petitioners are not entitled to avail the benefit under the amnesty scheme. In this regard a perusal of the paragraph 5(2) of the Amnesty Scheme reveals that the scheme clearly provides for making applications thereunder even in cases where there have been enforcement proceedings. Moreover, the petitioners have asserted that in their case there was no search, which fact is clearly supported by the reply received by them in response to their applications under the Right to Information Act, wherein it has been stated that no search warrant has been issued to Sunflower Developers - the first petitioner in both the petitions. Under the circumstances, prima facie it appears that the case of the petitioners is not a search case. In any event, even otherwise, while making a best judgment assessment under the GVAT Act, it was not permissible for the second respondent to comment on the eligibility or otherwise of the petitioners under the amnesty scheme. 19. As discussed hereinabov....