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2021 (2) TMI 248 - HC - VAT and Sales TaxLegality and validity of the order of attaching the bank account of the writ -applicant in exercise of power under Section 44 of the GVAT Act - service of notice under Section 34(8A) of the GVAT Act - HELD THAT - Ordinarily, we would not have entertained this writ -application on the ground that the impugned order dated 08.07.2019 passed under Section 34(8A) of the GVAT Act, 2003 is an appealable order. However, in view of certain pleadings in the writ -application, we thought fit to issue notice and call upon the respondents to justify its action of invoking Section 34(8A) of the Act. The communication is ordered to be taken on record. The plain reading of the afore said communication would indicate that the matter was closed for the assessment year 2010 -11 - as the condition precedent for invoking Section 34(8A) of the Act is not fulfilled in the present case, not only the impugned order dated 08.07.2019 of assessment is rendered illegal, but even the subsequent action in the form of attachment order under Section 44 of the Act would be rendered without jurisdiction. The impugned order dated 08.07.2019 passed by the respondent no.2 Annexure- D to the writ -application is hereby quashed and set aside - Application allowed.
Issues Involved:
1. Legality and validity of the order dated 08.07.2019 passed under Section 34(8A) of the Gujarat Value Added Tax (GVAT) Act, 2003. 2. Legality and validity of the attachment order dated 30.06.2020 under Section 44 of the GVAT Act, 2003. Issue-wise Detailed Analysis: 1. Legality and Validity of the Order Dated 08.07.2019 Under Section 34(8A) of the GVAT Act, 2003: The writ-applicant, a company, challenged the order dated 08.07.2019 passed by the respondent authority under Section 34(8A) of the GVAT Act, 2003. The core argument presented by the writ-applicant was that the assessment period for the year 2010-11 was completed in 2015, and the period for audit assessment under Section 35 of the GVAT Act was completed in 2016. Therefore, invoking Section 34(8A) after the statutory period had ended was illegal and without jurisdiction. The respondent authority contended that the impugned order was appealable under Section 73 of the GVAT Act, and hence, the writ-application should not be entertained. However, the court noted that the condition precedent for invoking Section 34(8A) is the pendency of any proceedings under the Act. Since there were no proceedings pending against the writ-applicant at the time of invoking Section 34(8A), the court found the action to be without jurisdiction. The court referred to several precedents, including "Dhanani Impex Private Limited Vs. State of Gujarat" and "Royal Enterprise Vs. State of Gujarat," which supported the view that Section 34(8A) could only be invoked during the course of any proceedings under the Act. The court concluded that the impugned order dated 08.07.2019 was rendered illegal due to the absence of pending proceedings. 2. Legality and Validity of the Attachment Order Dated 30.06.2020 Under Section 44 of the GVAT Act, 2003: The writ-applicant also challenged the attachment order dated 30.06.2020, which was passed under Section 44 of the GVAT Act, 2003, attaching the bank account of the writ-applicant. The argument was that if the impugned order dated 08.07.2019 was declared illegal, the attachment order would also be rendered illegal and without jurisdiction. Section 44 of the GVAT Act provides for a special mode of recovery. However, the court noted that since the condition precedent for invoking Section 34(8A) was not fulfilled, the subsequent action in the form of the attachment order under Section 44 would also be rendered without jurisdiction. The court supported its view by referring to the same precedents mentioned above. Conclusion: The court allowed the writ-application, quashing and setting aside both the impugned order dated 08.07.2019 and the attachment order dated 30.06.2020. The court emphasized that the condition precedent for invoking Section 34(8A) was not met, rendering both orders illegal and without jurisdiction. The writ-application was disposed of in the above terms, and the civil application for fixing the date of hearing was also disposed of accordingly.
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