2016 (5) TMI 521 - HC - VAT and Sales Tax

Validity of notice issued in Form 401 as well as the impugned detention order - All the requisite documents were produced except the transit pass in Form 405 as the driver forget to take it at the check post - Goods loaded in the truck detained - Petitioner submitted that provisions of section 70A of the GVAT Act are not applicable to goods which are in transit in a vehicle as all the requisite documents had been produced before the respondent authorities and hence, the entire action of the second respondent is without jurisdiction. High handedness of the action on the part of the respondent authorities is evident from the fact that the notice was issued to the driver at 02 45 p.m. and the driver was expected to respond to the same by 03 40 p.m. on the same day. Moreover, there was no notice issued to any of the petitioners and hence, the detention order is ex-facie violative of the principles of natural justice. Held that - the impugned detention order here contains several blanks. It is stated therein that the vehicle was stopped at Changodar Road, Ahmedabad under section 67(6) of the GVAT Act, whereas the learned Assistant Government Pleader, under instructions, has stated that no action was taken under sub-section (6) of section 67 of the GVAT Act, as a search warrant is required to be obtained for the purpose of carrying out search under sub-section (6) of section 67 of the GVAT Act. The impugned detention order also states that a notice was issued and served upon the transporter; however, there is a blank thereafter. Evidently therefore, no notice was issued to or served upon the transporter. In the entire detention order, there is nothing whatsoever to indicate as to what is the nature of the documents which were not produced by the driver. The impugned detention order is in a cyclostyled form and contains several blanks and nothing is stated as to what is the nature of non-compliance on the part of the petitioners. Moreover, as is evident, the notice under section 70A of the GVAT Act came to be issued at 02 45 p.m. to the driver of the vehicle calling upon him to respond to the same at 03 40 p.m. Evidently therefore, no reasonable opportunity of hearing has been given to the petitioners prior to passing of the detention order. Under the circumstances, the impugned detention order also suffers from the vice of breach of the principles of natural justice. Moreover, on a plain reading of the detention order, it is evident that the same suffers from total lack of application of mind on the part of the concerned officer. Thus, the impugned detention order stands vitiated on two counts firstly on the ground of breach of the principles of natural justice; and secondly, on the ground of lack of application of mind on the part of the concerned officer who passed the impugned order and therefore, the same cannot be sustained. Having regard to the fact that the impugned order is even otherwise not sustainable, the court is not inclined to enter into the larger controversy as regards the applicability or otherwise of the provisions of section 70A to the facts of the present case, leaving it open to the petitioner to agitate the same in an appropriate case. Hence, the impugned detention order is hereby quashed and set aside. Since the truck in question has been released during the pendency of the petition, the respondents are directed to forthwith release the goods seized from the truck together with the invoice and the lorry receipt.

Summary

Issues:
Challenge to notice and detention order under GVAT Act.

Analysis:
1. The petitioners challenged a notice and detention order issued under the Gujarat Value Added Tax Act, 2003. The petitioners, a sole proprietary firm and a registered company, were transporting goods from Delhi to Navi Mumbai. The truck entered Gujarat at Shamlaji check post but was detained at Changodar road. The driver failed to produce Form 405, leading to the detention order by the second respondent under section 70A of the GVAT Act.

2. The petitioners contended that the detention order violated principles of natural justice and that all required documents were produced, indicating the goods were in transit. They argued for quashing the order due to arbitrary detention and lack of jurisdiction. The respondent authorities were accused of high-handedness for not providing adequate notice and illegally seizing the truck and goods.

3. The respondents argued that essential documents were missing, indicating potential tax evasion. They claimed the goods were intended for unloading at Changodar, not Navi Mumbai, as per the driver and transporter's statements. The second respondent followed the procedure under section 70A of the GVAT Act, justifying the detention order as per the law.

4. The court noted the facts were undisputed. The impugned notice and detention order were issued on the same day, with the detention order citing missing documents related to the goods' transit through Gujarat. However, the order contained blanks, lacked specifics on non-compliance, and failed to provide a reasonable opportunity for a hearing, breaching natural justice principles.

5. The court found the detention order deficient in application of mind and lacking procedural fairness. It highlighted the incomplete details in the order, absence of proper notice to the transporter, and failure to specify the nature of non-compliance. Consequently, the detention order was quashed due to breaches of natural justice and lack of proper reasoning.

6. While not delving into the applicability of section 70A to the case, the court allowed the petition, quashed the detention order, and directed the release of the seized goods and documents. The respondents were instructed to release the goods promptly, and the petition was allowed with no costs incurred.