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2022 (4) TMI 3 - HC - VAT and Sales TaxMaintainability of petition - Recovery of arrear of tax - tax periods from 01.04.2013 to 30.09.2015 - HELD THAT - It is apt to say that writ petition is not entertainable against the Show Cause Notice in view of parameters laid down in Union of India Vrs. Coastal Container Transporters Association 2019 (2) TMI 1497 - SUPREME COURT . It is clear that the writ petition challenging the notice in Annexure-1 is premature inasmuch as the notice impugned in the writ petition is a notice contemplating initiation of recovery proceeding. Thus it is open for the petitioner to appear before the Joint Commissioner of CT GST-opposite party No.3 and file its reply/objection and participate in the proceeding for recovery in case the same has not yet been concluded. The writ petition is disposed of.
Issues:
Challenge to recovery notice under OVAT Act, 2004 for arrear demand - Jurisdiction under Article 226 - Prayers for quashing notice and assessment order - Interpretation of statutory provisions - Maintainability of revision petition under Section 79(2) - Applicability of appeal provisions under Section 77(1) - Stay of demand pending appeal - Principles of law governing appeal and stay - Recovery proceedings without stay order - Entertainability of writ petition against show cause notice. Analysis: 1. The petitioner challenged a recovery notice issued under the OVAT Act, 2004, seeking relief through the extraordinary jurisdiction of the High Court under Article 226. The petitioner contended that the recovery notice for arrear demand should not have been issued as the classification of Jasmine Coconut Oil as Ayurvedic hair oil was pending consideration before the Court in a separate matter. The petitioner invoked Section 79(2) for revision against the assessment order, while the opposite party argued that the petitioner should have filed an appeal under Section 77(1) instead of a revision petition. 2. The opposing party argued that the interim order in the previous matter did not grant a stay on the Tribunal's decision, making it binding on the Revenue Authorities. The counsel emphasized that the statutory remedy for challenging the assessment order was through an appeal under Section 77(1), not a revision under Section 79(2). The notice for recovery highlighted the absence of a stay order, indicating the validity of the demand raised in the assessment order. 3. The Court analyzed the provisions of Section 77(1) and Section 79(2) to differentiate between the appeal and revision mechanisms available to the assessee. It emphasized that statutory procedures must be followed as prescribed, and in this case, an appeal should have been filed for challenging the assessment order. The Court highlighted the importance of obtaining a stay order during the pendency of an appeal to halt recovery proceedings. 4. The Court further explained that the appeal process does not automatically stay proceedings unless an order of stay is obtained. Quoting legal principles, the Court reiterated the necessity of complying with procedural requirements and obtaining a stay order to suspend recovery proceedings. Since no stay order was shown to be in effect, the Court declined to interfere with the recovery notice and upheld the demand raised in the assessment order. 5. Additionally, the Court emphasized that a writ petition challenging a show cause notice for recovery was premature, as the notice indicated the initiation of recovery proceedings. The petitioner was advised to participate in the recovery process by responding to the notice and presenting objections before the competent authority. The Court disposed of the writ petition with these observations, highlighting the importance of following statutory procedures and obtaining necessary stay orders during appeal processes.
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