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2019 (10) TMI 807 - HC - VAT and Sales TaxCondonation of delay in filing of an Appeal - stay of recovery proceedings - Petitioner contended that, since the books of accounts and all other forms were lying in the factory, which was sealed on possession being taken of the factory by the 4th respondent-Bank under Section 13(4) of the SARFAESI Act, they are not in a position to challenge the assessment order - Re-opening of ex-parte assessment - principles of natural justice - HELD THAT - While it is not known whether the books of accounts and other documents, which the appellant-writ petitioner seeks release of, are still lying within the factory premises which has been sealed by the 4th respondent-Bank, such a request can, undoubtedly, be made to the Debts Recovery Tribunal under Section 17 of the SARFAESI Act, since possession being taken by the fourth respondent of the factory premises, under Section 13(4) of the SARFAESI Act, would include all movables and immoveable lying within the factory premises, including the books of accounts. There is no bar, therefore, for the appellant-writ petitioner to file an IA in the pending proceedings, under Section 17 of the SARFAESI Act, before the Debts Recovery Tribunal seeking release of the books of accounts, if any, lying within the factory premises. It is not even known whether the books of accounts, which the appellant-writ petitioner claims are located in the factory, are, in fact, located within the factory or not. Even if they are, it is still a matter of conjecture whether the appellant-writ petitioner s appeal would be entertained under Section 31 of the Uttarakhand VAT Act, after a lapse of more than a year - Further the scope of interference, in an intra-Court appeal, is extremely limited and, save cases where the order under appeal suffers from a patent illegality, no interference is called for. We see no reason, therefore, to interfere with the order under appeal. Appeal dismissed.
Issues:
1. Validity of the ex parte assessment order for the Assessment Year 2014-15. 2. Quashing the recovery citation and notice issued by the Tehsildar. 3. Direction to provide books of accounts by the State Bank of India. 4. Re-opening of the ex-parte assessment under the Uttarakhand VAT Act. 5. Stay on the recovery proceedings initiated by the Tehsildar. Issue 1: Validity of the ex parte assessment order The appellant filed a Writ Petition seeking to quash the ex parte assessment order dated 31.08.2018 for the Assessment Year 2014-15. The order was passed by the Commercial Tax Officer, Haridwar. The appellant argued that they were unable to challenge the assessment order as the necessary documents were inside a closed factory premises taken over by the Bank under the SARFAESI Act. They requested the Court to direct the Bank to provide the documents for appeal under Section 31 of the Uttarakhand VAT Act. Issue 2: Quashing the recovery citation and notice Following the ex parte assessment order, a recovery citation and notice were issued by the Tehsildar, Haridwar. The appellant sought to stay the recovery proceedings initiated by the Tehsildar until they could access the necessary documents for appeal. The Single Judge observed that the appellant could approach the Debts Recovery Tribunal for relief and dismissed the writ petition, granting liberty to move an application before the Tribunal. Issue 3: Direction to provide books of accounts The appellant argued that they needed the books of accounts held in the sealed factory to challenge the assessment order. The Court noted that the Bank had taken possession of the entire factory under the SARFAESI Act, which included all assets within it. The Court suggested that the appellant could request the release of the documents through the Debts Recovery Tribunal under Section 17 of the SARFAESI Act. Issue 4: Re-opening of the ex-parte assessment The appellant requested the re-opening of the assessment under the Uttarakhand VAT Act, citing the unavailability of necessary documents due to the Bank's possession of the factory. The Court highlighted that the assessment order had attained finality over a year ago and that the appellant's appeal under Section 31 might not be entertained after such a delay. Issue 5: Stay on recovery proceedings The appellant sought a stay on the recovery proceedings until they could access the required documents for appeal. The Court declined to interfere with the recovery citation and notice issued by the Tehsildar, emphasizing that such matters should be addressed by the appellate authority during the appeal process. The Court dismissed the Special Appeal, stating that interference was not warranted unless there was a patent illegality in the order under appeal.
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