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TMI Blog2008 (9) TMI 889X X X X Extracts X X X X X X X X Extracts X X X X ..... ievance cannot be made. Thus this court is of the opinion that no indulgence can be granted and it does not call for any interference in exercise of its discretionary jurisdiction under article 226 of the Constitution of India. - - - - - Dated:- 9-9-2008 - PUJ K.A. AND RAJESH H. SHUKLA , JJ. ORDER:- The order of the court was made by RAJESH H. SHUKLA J. The present petitions have been filed by the petitioners who are the proprietors of the respective firms. Special Civil Application No. 5335 of 2008 is filed by Shri Mahalaxmi Traders through its proprietor Smt. Harpritkaur Kaushikkumar Manek and petitioner No. 2 is Smt. Harpritkaur Kaushikkumar Manek. Special Civil Application No. 7804 of 2008 is filed by Shri Bhavani Ispat through the proprietor, Kaushikkumar P. Manek and he is also petitioner No. 2. The proprietors of both the aforesaid firms are the husband and wife and the business of both the firms has been managed, controlled and carried out at the same premises, i.e., C-3406, Anushruti Towers, Opposite New York Towers, S.G. Highway, Thaltej, Ahmedabad. The present petitions have been filed by the petitioners for the prayer, inter alia, that writ, order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 7804 of 2008), which is owned, managed and administered by the husband of petitioner No. 2 in S.C.A. No. 5335 of 2008. It is also alleged that while carrying out inspection of the said Shri Bhavani Ispat, the respondent authorities have taken drastic action in respect of petitioner No. 1-firm, i.e., Shri Mahalaxmi Traders, and passed an order for attachment of the flat/office premises of petitioner No. 1firm, Shri Mahalaxmi Traders, by provisional attachment order dated January 7, 2008 and, therefore, the said action as well as the provisional attachment order passed is challenged by way of the present petitions. It is further alleged that the respondent-authorities have resorted to the proceedings in the nature of issuance of notices upon the third parties to whom the petitioners have sold goods and the respondent-authorities have no right to restrain third parties from making payment in respect of the transactions which have taken place between the petitioners and the third parties and, therefore, the said action has also been challenged by way of the present petitions. It is contended in S.C.A. No. 5335 of 2008 filed by Shri Mahalaxmi Traders that Shri Bhavani Ispat (S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of registration under the VAT Act. In the same way, the petitioners in S.C.A. No. 5335 of 2008 have also been issued notices in form No. 401 which is at annexure B and also notice in form No. 301 has been issued on January 5, 2008 which clearly states that in spite of the notice in form No. 401, the petitioners therein have failed to remain present and therefore the notice in form No. 301 for the provisional assessment was issued dated January 5, 2008. In spite of such notice they have not remained present and therefore the order regarding the provisional attachment, in exercise of powers under the VAT Act, has been issued, which is at annexure C. Thereafter, notices under section 44 of the VAT Act have also been issued to Shri Mahalaxmi Traders and therefore the present petitions have been filed on various grounds. It is contended that the petitioners made all the files and the record available and there was no necessity to issue such notices in form No. 401 and thereafter in form No. 301 at annexure C and thereafter the provisional attachment order dated January 7, 2008 at annexure D has been passed (S.C.A. No. 5335 of 2008). Thereafter, another order came to be pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strenuously submitted that the entire action is bad and in violation of article 14 of the Constitution as well as the provisions of the VAT Act and has also violated the principles of natural justice. Though these contentions have been raised by learned advocate Mr. Suthar for learned advocate Mr. Majmudar for the petitioners, a bare reading of the notices in both the petitions and the provisional attachment order in S.C.A. No. 5335 of 2008 passed qua Shri Mahalaxmi Traders would make it clear that the petitioners have failed to respond to the notices issued by the authorities and in spite of repeated notices, they have not submitted the necessary details or the material on the basis of which the assessment could be made. The notice in form No. 401 is issued calling upon them to produce the material. When they failed to comply with the same, further notice is issued for the purpose of provisional attachment to which also when they have not complied with, further orders have been passed including the provisional attachment order of the premises of the business carried on by both the firms and also frozen the bank accounts of both the firms. A contention has been made by the learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce with those notices for production of material and thereafter non-compliance with notice in form No. 301 for provisional assessment and notice for penal action under section 85(2), there was no response from the petitioners, that the authorities have passed the impugned orders. Section 45 of the Act provides for provisional attachment. It reads as under: Section 45. Provisional attachment. (1) Where during the pendency of any proceedings of assessment or reassessment of turnover escaping assessment, the Commissioner is of the opinion that for the purpose of protecting the interest of the Government revenue, it is necessary so to do, he may, by order in writing, attach provisionally any property belonging to the dealer in such a manner as may be prescribed. (2) Every such provisional attachment shall cease to have effect after the expiry of a period of one year from the date of the order made under sub-section (1). Thus, it is evident that the petitioners who have not only failed to comply with the notices and have not remained present with the registers, material for the purpose of assessment and even thereafter have not chosen to resort to the remedy as provided u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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