TaxTMI 
TaxTMI 
2021 (2) TMI 248
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....orari/ mandamus or any other appropriate writ, order or directions quashing and setting aside the consequential action of the respondent authority of attaching the bank account of the petitioner under Section­ 44 of the GVAT Act, 2003 annexed at Annexure­F; (C) pending admission, hearing and final disposal of this petition; (i) be pleased to stay the execution and implementation of order dated 08.09.2019 passed by the Respondent No.2 which is annexed at Annexure-­D. (ii) be pleased to stay the attachment order passed by the Respondent No.2 Authority, whereby the bank of the petitioner company is attached which is annexed at Annexure­F and permit the petitioner to operate the Ban Account as the petitioner is a working enterprise. (D) be pleased to grant such other and further reliefs and/or orders in the interest of justice in favour of the petitioner as deemed just and proper; 2. The facts giving rise to this writ­-application may be summarized as under:­ 2.1 The writ­-applicant seeks to challenge the legality and validity of the order passed by the respondent no.2 herein dated 08.07.2019 under the purported exercise of powers under Section &sh....
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....der Section­35 of the GVAT was completed on 31st March 2016. He would argue that when the statutory period as prescribed by law came to an end way­back in 2016, it was not open for the respondent authority to over­look the period of limitation under the garb of under Section ­34(8A) of the GVAT Act. 5. He would submit that the condition precedent for invoking Section ­34(8A) of the GVAT Act, 2003 is the pendency of any proceedings under the Act. It is only in the course of any proceedings under the GVAT Act if the authority is satisfied that the tax has been evaded or the tax liability has not been disclosed correctly then, in such circumstances, the authority can initiate the assessment in respect of such transaction or claim after giving a reasonable opportunity of being heard. It is argued that when everything came to an end way­back in 2015 itself and when there were no proceedings pending of any nature, invoking of the Section ­34(8A) of the GVAT Act could be said to be without jurisdiction. 6. Mr. Thakore would submit that if the impugned order dated 08.07.2019 is declared as illegal by this Court then the order of attachment of the bank account ....
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....sfer the proceedings relating to such transaction or claim directing the concerned assessing authority to assess the dealer in respect of such transaction or claim: Provided further that the prescribed authority shall, notwithstanding anything contained in section 17, be deemed to have the requisite jurisdiction and power to assess such dealer in respect of such transaction of sale or purchase or claim, covered by clause (a) and such assessment proceedings shall, for all purposes of this Act, be deemed to have been transferred to such authority. (b) The assessment proceedings under this sub­section shall be without prejudice to the assessment proceedings in respect of the said period or periods under any other provisions of this Act by any authority who otherwise has the jurisdiction to assess such dealer in respect of other transactions of sale or purchase or any other claim. (c) The assessment under this sub­section shall be made separately in respect of the transaction or claim relating to the said period or periods to the best of the judgment of the prescribed authority where necessary and irrespective of any assessment made under this sub-section, the dealer m....
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....med to have made the payment under the authority of the dealer, and the receipt thereof by the Commissioner shall constitute a good and sufficient discharge of the liability of such person to the extent of the amount specified in the receipt. (4) Any person discharging any liability to the dealer after receipt of the notice referred to in this section, shall be personally liable to the Commissioner to the extent of the liability discharged or to the extent of the liability of the dealer for tax, penalty and interest, whichever is less. (5) Where a person to whom a notice under this section is sent objects to it by a statement in writing that the sum demanded or any part thereof is not due or payable to the dealer or that he does not hold any monies for or an account of the dealer, the Commissioner shall hold an inquiry and after giving to such person or dealer a reasonable opportunity of being heard, make such order as he thinks fit. (6) Any amount of monies which the aforesaid person is required to pay to the Commissioner, or for which he is personally liable to the Commissioner under this section shall, if it remains unpaid, be recoverable as an arrears of land revenue. ....
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....onth Sales Amount No. VAT Amount April ­ 10 1773000 5 10000 May ­ 10 1768000 5 10000 June ­ 10 2565000 5 10000 July ­ 10 1074000 4 8000 August - 10 783500 2 4000 September - 10 1930700 4 8000 October - 10 1115100 6 12000 November - 10 1226500 6 12000 December - 10 1454600 8 16000 January - 11 1444000 8 16000 February - 11 1223000 6 12000 March ­ 11 1019000 9 18000 Total Amount 17376400 68 136000 SALES 0 (Zero) % 17376400 12.50% 146988592 15.00% 926784 Total 165291776 14. The communication is ordered to be taken on record. The plain reading of the afore­said communication would indicate that the matter was closed for the assessment year 2010­-11. 15. We are of the view that as the condition precedent for invoking Section ­34(8A) of the Act is not fulfilled in the present case, not only the impugned order dated 08.07.2019 of assessment is rendered illegal, but even the subsequent action in the form of attachment order under Section­ 44 of the Act would be rendered without jurisdiction. 16. In taking afore­said view, we are supported by the following dec....
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..... Sub-section (8A) of section 34 therefore needs to be seen in background of such statutory provisions, particularly, bearing in mind facts of the case. 11. Facts of the case are that by the time the respondents issued notice for revising the tax of the petitioner under sub-section (8A) of section 34, the original assessment was already completed in February 2010. In any case, in terms of sub-section (9) of section 34, such assessment became time barred by 31.03.2011. In terms of sub-section (1) of section 35, the Commissioner, if was of the opinion that the dealer was assessed at a rate lower than the rate it was assessable, could have passed an order after giving an opportunity of being heard to the dealer. However, even such order could be passed as provided under sub-section (2) of section 35 only within five years from the end of the year in which such tax liability arose. 12. When the petitioner's assessment thus became final and by efflux of time, even exercise of powers by the Commissioner under section 35(1) became barred by limitation, sub-section (8A) was not even yet introduced in the statute book. We have serious doubt whether this provision could be applied to the....