TaxTMI 
TaxTMI 
2020 (8) TMI 532
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....mplementation and recovery under the impugned order dated 18.03.2020 and demand notice dated 18.03.2020 annexed as Annexure A (Colly) hereto; (c) and Ex parte ad-interim relief in term of paragraph 9(b) be granted; and (d) For Costs; and (e) That this Honorable Court be pleased to grant such other and further reliefs as are deemed just and proper in the facts and circumstances of this case." 2 The facts in brief giving rise to this litigation are stated thus: 2.1 The writ applicant No.1 is a company inter alia engaged in the business of manufacturing and sale of readymade garments and fabrics. The writ applicant No.1 is duly registered under the Value Added Tax Act. 2.2 The writ applicant No.2 carried out the assessment proceedings under Sub-section (2) of Section 34 of the VAT Act for the period 2015-16. The respondent No.2 assessed total dues of Rs. 56,12,988/-, which includes the value added tax to the tune of Rs. 17,43,164/-, interest of Rs. 12,55,078/- thereon and the penalty of Rs. 26,14,746/- imposed at the rate of 150% under Section 34(12) of the VAT Act vide the impugned assessment order dated 18th March 2020 passed in form No.304 under Section 34 of the VAT Act. ....
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....Mr. Parikh prays that there being merit in his writ application, the same be allowed and the impugned order dated 18th March 2020 as well as the demand Notification dated 18th March 2020 be quashed and set aside. * SUBMISSIONS ON BEHALF OF THE RESPONDENTS: 8 Ms. Manisha Lavkumar Shah, the learned Government Pleader appearing on behalf of the respondents has vehemently opposed this writ application. Ms. Shah has raised a preliminary objection with regard to the maintainability of the present writ application on the ground that the writ applicants have an alternative efficacious remedy of preferring an appeal against the impugned order under Section 73 of the Gujarat Value Added Tax Act, 2003 (for short, 'the Act, 2003'). In such circumstances, Ms. Shah would submit that this writ application may not be entertained and the writ applicants may be relegated to exhaust the alternative remedy available to them in law. 9. Ms. Shah further submitted that without prejudice to her preliminary objection as regards the maintainability of the present writ application even otherwise the writ applicants have no case on merits. Ms. Shah would submit that a reasonable opportunity of hea....
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....e filing the present writ petition. It is pertinent to note here that the authorized representative of the petitioner had personally appeared in the assessment proceedings before the assessing authority on 17/03/2020 and on a specific request of the authorized representative who appeared before the assessing authority, one final opportunity for production of relevant documents was granted by assessing authority on 17/03/2020. Thereafter the authorized representative again appeared before the assessing authority on 18/03/2020 and submitted bills for consideration of the assessment authority. It is further submitted that before this Hon'ble Court that on 18/03/2020 itself the authorized representative of the petitioner has stated that no additional documents are now required to be submitted by the petitioner and therefore no further hearing is contemplated in the assessment proceedings. Hence the respondent authority passed the assessment order on 18/03/2020 as the bearing on the assessment proceedings has already concluded on 8/03/2020. A copy of the order-sheet evidencing the said aspect is annexed hereto and marked Annexure A. 6. The next contention of the petitioner with regard....
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.... can be noticed that the appellate authority under the VAT Act does not have original powers of assessment or of further inquiry. Again, noticing the glaring and blatant act of denial of the very basic document of cancellation of the registration of M/s. Maa Oil Mills, being No. 240942971,which is the edifice for denying ITC to the petitioner, this court finds the request of invocation of Writ jurisdiction for the purpose of setting aside the impugned order necessary without entering into the merits, on the grounds of non supply of basic documents and non consideration of the case of the Petitioner independently, on its own merits. In absence of pleadings of fraud in the notice and with specific and categorical averment made in the reply to the notice of the transactions made through the banking channels, coupled with the procurement of goods for transportation, receipts for payment of GST and selling of the very goods to the other parties, make us believe that the order passed by respondent No.2 is in breach of principles of natural justice. The individual merits on the basis of materials furnished are to be determined by the authority and not simply because the registration of M/....
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....wever, later on, the registration of the M/s. Lucky Enterprise came to be cancelled ab initio from 22.02.2006 on the ground that M/s. Lucky Enterprises is not a genuine dealer and had indulged into billing activities only, and therefore, all the transactions made by M/s. Lucky Enterprises were found to be bogus and non-genuine. Thereafter, the order passed by the Assessing Officer, allowing ITC claimed by the petitioner - dealer of Rs. 6,49,561/-, came to be taken under suo motu revision by the first Revisional Authority, i.e. Deputy Commissioner of Commercial Tax, Audit-1, Ahmedabad. Then, the petitioner dealer was served with the show-cause notice and was also called upon to show reason, as to why ITC claimed by the petitioner- assessee on the purchases alleged to have been made from M/s Lucky Enterprises may not be denied or cancelled." 15. In Shree Bhairav Metal Corporation (supra), this Court observed as under: "9.1 That the Assessing Officer allowed the ITC claimed by the petitioner - dealer on the purchases made by the petitioner alleged to have been made from one M/s Lucky Enterprises. That in exercise of revisional jurisdiction, the first revisional authority disallowed....
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....indulged into billing activities only, is required to be considered. However, an opportunity is required to be given to such dealer/purchaser to prove the genuineness of the transaction and/or to justify its claim of ITC. In the present case, the first revisional authority had disallowed the ITC claimed of Rs. 6,49,561/- on the purchases alleged to have been made from M/s Lucky Enterprises relying upon the order passed by the appropriate authority in the case of M/s Lucky Enterprises cancelling its registration certificate ab initio from 22.2.2006 and the finding recorded by appropriate authority while cancelling the registration certificate of M/s Lucky Enterprises ab initio from 22.2.2006 that the transactions by M/s Lucky Enterprises are bogus and non-genuine. However, the petitioner dealer was not served with the copy of the order in the case of M/s Lucky Enterprises cancelling its registration certificate ab initio from 22.2.2006. 9.3 Now, so far as contention of the petitioner that the petitioner produced necessary documentary evidence such as bills, vouchers, weigh bills/slips and the payments were made by cheques and therefore, the first revisional authority ought not hav....
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....impugned order, the learned Tribunal has not properly appreciated and consider the aforesaid aspect. Under the circumstances, the impugned judgment and order passed by the learned Tribunal is required to be quashed and set aside on the aforesaid ground alone and the matter is required to be remanded to the adjudicating authority to consider the claim of the petitioner of ITC on the alleged purchases made by the petitioner from M/s Lucky Enterprises." 16. In both the above referred decisions of this Court, emphasis has been placed on furnishing of the necessary and relevant documents to the party concerned in the form of assessment order including the order of cancellation of registration of the vendors. Although Ms. Shah, the learned Government Pleader tried her best to convince us that all necessary information was furnished to the writ applicants, yet we are not convinced with such a stance of the State. We take notice of many procedural lapses on the part of the respondent No.2 going to the root of the matter. There is no escape from the fact that the hearing for the purpose of imposing penalty under the Act, 2003 pursuant to the notice issued in that regard in Form No.309 was ....