2012 (5) TMI 112 - HC - VAT and Sales Tax

Proceedings under Article 226 against the order of provisional attachment Held that - The material which has been revealed during the course of investigation suggests that the selling vendors are parties without any legitimate business or assets and have been set up only with a view to devise a scheme to defraud the Revenue - Nothing contained in this order would be regarded as the expression of a final or conclusive opinion by the Court on the issues which would arise during the course of assessment - if the entire basis of the claim of set off is found upon assessment to be bogus or fraudulent, the challenge to Section 48(5) cannot be entertained at the behest of the Petitioner - before the issue of constitutional validity is considered, the basic facts would need to be established in the course of assessment proceedings are required assessee has also not submitted that he would be entitled to a set off even if the underlying transaction of sale is bogus or fraudulent - do not consider it appropriate to exercise the extraordinary writ jurisdiction under Article 226 as observations only prima facie, since the entire matter is still to be investigated following which a regular assessment would be framed Writ dismissed.

Issues Involved:

1. Provisional attachment of bank accounts.
2. Restriction of attachment to Rs. 1.81 Crores.
3. Constitutionality of Section 48(5) of the Maharashtra Value Added Tax Act, 2002.
4. Direction to the Commissioner of Sales Tax to hear an application against the provisional attachment order.

Detailed Analysis:

1. Provisional Attachment of Bank Accounts:

The petitioner challenged the provisional attachment order dated 18 November 2011, which was issued by the Sales Tax authorities under Section 35 of the Maharashtra Value Added Tax Act, 2002 (MVAT Act). The attachment was based on the assumption that the petitioner had claimed wrongful Input Tax Credit (Set off) due to certain vendors not filing proper returns. The petitioner argued that the attachment was excessive and done without a hearing, as the disputed amount was Rs. 1.81 Crores, while the total receivable attached was Rs. 23.29 Crores. The court noted that the provisional attachment was a protective measure for the revenue and did not require a prior hearing, but the petitioner was entitled to a post-attachment hearing.

2. Restriction of Attachment to Rs. 1.81 Crores:

The petitioner sought to restrict the attachment to the disputed amount of Rs. 1.81 Crores. The court observed that the petitioner had already moved the Commissioner under Section 35(5), resulting in an order dated 12 April 2012, which restricted the attachment to Rs. 1.81 Crores. The court noted that the petitioner could appeal this order under Section 35(6) to the Tribunal, indicating that the petitioner had an adequate remedy within the statutory framework.

3. Constitutionality of Section 48(5) of the MVAT Act:

The petitioner contended that Section 48(5) of the MVAT Act, which limits the set-off to the amount of tax actually paid into the Government treasury, was unconstitutional. The petitioner argued that this provision placed an impossible burden on purchasing dealers to ensure their vendors filed proper returns. The court, however, deferred the constitutional challenge, stating that it could not be entertained in a vacuum. The court emphasized that the issue of set-off entitlement would be determined during the assessment proceedings, and the challenge to Section 48(5) would be premature without establishing the basic facts of the case.

4. Direction to the Commissioner of Sales Tax to Hear the Application:

The petitioner sought a direction for the Commissioner of Sales Tax to hear their application against the provisional attachment order. The court noted that the petitioner had already availed of the remedy under Section 35(5), and the Commissioner had passed an order restricting the attachment. Therefore, the court found no reason to issue a further direction.

Conclusion:

The court dismissed the petition, finding that the petitioner had already obtained partial relief by restricting the attachment to Rs. 1.81 Crores and had adequate statutory remedies available. The court also held that the constitutional challenge to Section 48(5) was premature and should be addressed during the assessment proceedings. The petition was dismissed without costs.

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