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TMI Blog2010 (7) TMI 917X X X X Extracts X X X X X X X X Extracts X X X X ..... hing the bank account for recovery of the entire amount, including penalty and interest during the pendency of the petition also deserves to be deprecated. Considering the fact that the petitioner having already deposited the amount in question, may be under a wrong form, and the amount was lying with the Department, the circumstances did not justify resorting to such drastic action. Hence, the respondents are not justified in attaching the bank account of the petitioner.Appeal allowed. - 6998, 7206 of 2010 - - - Dated:- 16-7-2010 - MEHTA D.A. AND DEVANI H.N. , JJ. JUDGMENT:- The judgment of the court was delivered by Ms. H.N. DEVANI J. Rule. The learned Assistant Government Pleader Ms. Maithili Mehta is directed to waive service of rule for the respondents. Having regard to the controversy involved in the present petition, which lies in a very narrow compass, the petition is taken up for hearing today. This petition has been preferred seeking the following substantive reliefs: (1) that the assessment orders dated May 1, 2010 under the Entry Tax Act and the GVAT Act passed by the third respondent received on May 17, 2010 be quashed and set aside and the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re-authenticated by the officer. It is the practice of the Department to call for the counterfoils of earlier used forms and scrutinise them and to verify the payment of entry tax by the dealer concerned, for goods imported through such used forms. It is only after recording satisfaction on these counts, that the concerned officer pre-authenticates the next set of form No. 403. During the relevant period, the petitioner had obtained such pre-authenticated forms from the jurisdictional officer as many as 14 times. However, no one from the Department drew the petitioner's attention to the use of incorrect challan form No. 207 prescribed under the GVAT Act instead of correct form No. 1 as prescribed under the Entry Tax Act. Somewhere during March, 2008, thepetitioner came to know of its mistake and accordingly with effect from February, 2008, the petitioner has been paying entry tax using the correct form No. 1. Vide notice dated June 15, 2009 under sections 67, 70 and 70A of the Act, the petitioner was called upon to remain present on 26th June, 2009 with the details called for in the said notice. The petitioner filed a reply to the notice stating that the petitioner had by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he reliefs noted hereinabove. Subsequently, during the pendency of the present petition, the respondents vide a letter addressed to the Vijaya Bank for attachment of bank account of the petitioner being current account No. 7254 for recovery of Rs. 3,08,90,873, attached the said bank account of the petitioner. The petitioner, therefore, moved the aforesaid civil application seeking the following reliefs: (1) During the pendency of the aforesaid special civil application this honourable court direct respondent No. 4 to withdraw the attachment of the bank account of the appellant and restrain them from taking any further steps for recovery of the demand raised. The appellant therefore requests this honourable court to issue any order, direction not to proceed with coercive recovery and withdraw the bank attachment and restrain the Vijaya Bank from making any payment to the respondent on such terms and conditions which may be deemed fit and proper; (2) Vijaya Bank Ring Road, Surat, be added as respondent No. 5 to the above special civil application as relief is sought against it and petition may be allowed to be amended for that purpose. (3) Any other and further relief jus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s emerging from the record of the petition are that the petitioner has paid the amount payable by way of entry tax under form No. 207 prescribed under the GVAT Act, indicating in the said form that the payment is towards entry tax. It is not the case of the respondents that the amount deposited under form No. 207 was towards any other tax which the petitioner was liable to pay. The case of the respondents is that entry tax is required to be deposited under form No. 1 as prescribed under the Entry Tax Act and the Rules framed thereunder. That the petitioner has neither filed form No. 1 which is the return-cum-challan nor paid tax for the financial year 2006-07. The say of the respondent is based upon the fact that it is the case of the respondent that if payment is not made in the manner prescribed for payment of entry tax, the same is not a valid payment and therefore, it is deemed that the petitioner had defaulted in making payment of entry tax. Thus, the respondents do not dispute that the petitioner has paid entry tax along with form No. 207 as prescribed under the GVAT Act and the Rules framed thereunder in respect of the goods imported by it. The only objection is that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in attaching the bank account for recovery of the entire amount, including penalty and interest during the pendency of the petition also deserves to be deprecated. Considering the fact that the petitioner having already deposited the amount in question, may be under a wrong form, and the amount was lying with the Department, the circumstances did not justify resorting to such drastic action. Hence, the respondents are not justified in attaching the bank account of the petitioner. For the foregoing reasons, both, the petition as well as the civil application succeed, and are, accordingly allowed. The impugned assessment orders dated May 1, 2010, under the Entry Tax Act as well as the GVAT Act made by respondent No. 3 as well as demand raised under both the Acts for payment of tax, interest and penalty are hereby quashed and set aside. As regards the objection that the entry tax is required to be paid in the prescribed form, the ends of justice would be met with by directing the respondents to refund the amount to the petitioner and directing the petitioner to re-deposit the same along with the prescribed form. Accordingly, the respondents are directed to refund the amounts p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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