2023 (3) TMI 795

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....en up for final consideration. 1.1 Rule, returnable forthwith. Learned Assistant Government Pleader Mr.Aditya Pathak waives service of rule on behalf of both the respondents. 1.2 Heard learned advocate Mr.Uchit Sheth for the petitioner and learned Assistant Government Pleader. 2. By filing present petition under Article 226 of the Constitution, the petitioner has prayed to set aside the notice dated 1.9.2022 as well as the consequential order dated 16.9.2022 passed under Section 34(8A) of the Gujarat Value Added Tax Act, 2003. 3. It appears that when the prayers originally framed, it was the notice which was sought to be challenged, whereas the order came to be passed during the pendency of the petition which was challenged by s....

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....raightway, it reads as under, "(8A)(a) During the course of any proceedings under this Act, if the prescribed authority is satisfied that the tax has been evaded or sought to be evaded or the tax liability has not been disclosed correctly or excess tax credit has been claimed by any dealer in respect of any period or periods by not recording or recording in an incorrect manner, any transaction of sale or purchase, or that any claim has been incorrectly made, then in such a case notwithstanding any notice for assessment has been issued under other provisions of this section or any other section of this Act, the prescribed authority may, after giving such dealer a reasonable opportunity of being heard, initiate assessment of the deal....

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....that, once the dealer is assessed under this sub-section, no tax from such transaction or claim and penalty and interest, if any, shall be levied or demanded from such dealer, at the time of assessment to tax under the other provisions of this section in respect of the said period or periods relating to such transaction or claim. Explanation. - For the purpose of this subsection, "prescribed authority", "the said authority", "such authority" and "any authority" shall mean, the Commissioner or, as the case may be, the authorities appointed under section 16 and other officers or persons to whom the Commissioner has delegated his power in this behalf.]" 3.4.2 The aforesaid provision contemplates that during the course of any procee....

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....essential condition. It is in the nature of condition precedent. 4. In Dhanani Import Export Private Limited and Another Vs. State of Gujarat and Another [(2017 98 VST 439 (Guj)], the Division Bench of this court in the context of operation and exercisbilty of powers under Section 34(8A)(a), (9) as also Section 35(1), (2) of the Act, considered the issue to observe and held as under, "There is yet another strong reason why we can not upheld the action of the respondent authorities. Clause(a) of subsection (8A) which empowers the prescribed authority to collect tax when it is found that tax has been evaded or sought to be evaded or tax liability has not been disclosed correctly or excess tax has been claimed, the same can be done....