2014 (8) TMI 471 - HC - VAT and Sales Tax

Challenge to orders of provisional assessment orders under Section 25(1) of U.P. Value Added Tax Act, 2008 - prayer for quashing of the aforesaid two circulars dated 12th November 2013 and 29th of January 2014 passed by the Commissioner, Commercial Tax. U.P. Lucknow - Held that - It is admitted by the petitioner that the notices were served, however, the petitioner was prevented to appear in their case as one day time is not an adequate opportunity. However, the petitioner instead of taking recourse of remedy of Section 32 of the Act, has rushed to this Court. - Accordingly, in view of availability of an alternative remedy in the form of Section 32 of U.P. Value Added Tax Act, 2008, we are not inclined to entertain this petition. The liberty is given to the petitioner to invoke his right under Section 32 of the Act. If any such application is made by the petitioner within 30 days from today, the same shall be entertained and decided expeditiously after providing a reasonable and adequate opportunity of hearing and of taking all the grounds, pleas and defence which may be available to the petitioner in law. The application, if so moved under Section 32 of the U.P. Value Added Tax Act, 2008, will not be rejected merely on the ground of delay, if any. - Writ petition disposed of.

Summary

Issues:
1. Challenge to circulars dated 12th November 2013 and 29th January 2014 issued by the Commissioner, Commercial Tax, U.P. Lucknow.
2. Challenge to provisional assessment orders under Section 25(1) of U.P. Value Added Tax Act, 2008 for specific months.

Analysis:
1. The petitioner challenged the circulars issued by the Commissioner, Commercial Tax, U.P. Lucknow, but later withdrew the challenge. The court allowed the petitioner to raise the issue in future proceedings. The challenge to the circulars was not pressed by the petitioner, and the court kept the question open for future consideration if necessary.

2. Regarding the provisional assessment orders under Section 25(1) of the U.P. Value Added Tax Act, 2008, the petitioner claimed that they were not given adequate time to respond. The court observed that the notices were served on the petitioner only a day before the scheduled appearance, which was deemed insufficient. The court cited a previous judgment emphasizing the necessity of providing proper opportunity even for provisional assessments. The court noted that the impugned assessment orders were ex parte but pointed out that the Act provides a statutory remedy under Section 32 for such cases.

3. The court highlighted that the petitioner, instead of availing the statutory remedy under Section 32 of the Act, directly approached the court. The court, considering the availability of an alternative remedy, declined to entertain the petition. The petitioner was granted liberty to invoke Section 32 within 30 days for a fair hearing. The court clarified that any delay in filing under Section 32 would not be a ground for rejection.

4. In conclusion, the court disposed of the writ petition, emphasizing the importance of utilizing the statutory remedies available under the U.P. Value Added Tax Act, 2008. The court directed the petitioner to follow the prescribed procedure under Section 32 for addressing the issues related to the provisional assessment orders, ensuring a fair opportunity for hearing and presenting all relevant defenses.