2021 (1) TMI 555 - HC - VAT and Sales Tax

Maintainability of petition- availability of alternate remedy - non-speaking order - HELD THAT - Learned Assistant Government Pleader Shri Chintan Dave could not justify in any manner that the impugned order is a reasoned order or that it was not a non speaking order. Law is well settled that a non speaking order suffers from arbitrariness which goes to the root of the matter and as such alternative remedy may not come in the way of this Court in entertaining this petition. Petition allowed.

Summary

Issues:
1. Challenge to show-cause notice and order passed by Commercial Tax Officer.
2. Consideration of points raised in reply by the petitioner.
3. Validity of the impugned order dated 3rd June, 2020.
4. Interpretation of "purchase price" under the Gujarat Value Added Tax Act, 2003.
5. Applicability of previous High Court decision in Tax Appeal No.349 of 2016.
6. Exclusion of value-added tax component from taxable turnover.
7. Alternative remedy of filing a statutory appeal under Section 73 of the GVAT Act 2003.

Analysis:

The petitioner challenged a show-cause notice and an order passed by the Commercial Tax Officer, which were allowed in favor of the petitioner in a previous proceeding. However, the respondent failed to consider the points raised in the petitioner's reply, leading to a non-speaking order dated 3rd June, 2020. The Court noted that a non-speaking order is arbitrary and entertained the petition despite an alternative statutory appeal remedy available under Section 73(1) of the Gujarat Value Added Tax Act, 2003. The impugned order was quashed, directing the respondent to pass a fresh reasoned order within three months, affording the petitioner due opportunity.

After the matter was remitted to the respondent to pass a fresh order, a subsequent order was challenged in the present writ-application. The petitioner contended the legality and validity of the order, highlighting a previous High Court decision in Tax Appeal No.349 of 2016, which was not appropriately addressed. The Court examined the interpretation of "purchase price" under the GVAT Act, emphasizing that the value-added tax component should be excluded from the turnover of purchases to calculate input tax credit under the Act.

The petitioner argued that amounts collected under a statutory obligation should not be part of the taxable turnover, citing the M/s. Ambuja Cement Ltd. case. The Court issued notices to the respondents for further proceedings and granted ad-interim relief. The respondents were to be served through email, and the learned Assistant Government Pleader was instructed to obtain necessary instructions for the next hearing based on the paper-book provided.

The Court's decision highlighted the importance of a reasoned order, the exclusion of the value-added tax component from taxable turnover, and the need for adherence to legal principles in tax matters under the GVAT Act, as established by previous judgments. The petitioner's contentions regarding the legality of the impugned order and the interpretation of "purchase price" were thoroughly examined, emphasizing the need for a fair and reasoned decision-making process in tax matters.