9911796707
TMI Blog2012 (11) TMI 1047X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus the action of the respondents in ordering “stop delivery” of the goods of the petitioner communicated through the impugned communication dated 12/15.10.2012 is declared illegal and hereby quashed - Special Civil Application No. 14739 of 2012 - - - Dated:- 5-11-2012 - AKIL KURESHI AND HARSHA DEVANI , JJ. For the Appellant : M/s. Wadia Ghandy Co. For the Respondents : Ms Shruti Pathak, Assistant Government Pleader, JUDGMENT:- 1. Rule. Ms. Shruti Pathak, learned Assistant Government Pleader waived service of rule on behalf of the respondents. Considering the nature of the dispute involved, the petition is taken up for final disposal presently. 2. The petitioner has challenged an order, gist of which was communicated to the petitioner under communication dated 12/15.10.2012. The respondent No.2 Assistant Sales Tax Commissioner under the purported exercise of powers under section 67(6) of the Gujarat Value Added Tax Act, 2003 ( VAT Act for short), detained the goods belonging to the petitioner lying in the godown situated at Unja. The Assistant Commissioner styled his order as stop delivery order. Brief facts may be noted at this stage. 3. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when the order was passed. Another contention of the petitioner is that in any case, the respondents have no power to detain the goods, that too, under section 67(6) of the Act. 8. On the other hand, the case of the respondents is that since the registration of M/s Surya Vinayak Industries Ltd. was cancelled with effect from 1st January, 2011, any purchase made by the petitioner from such agency would not qualify for tax credit in terms of section 11(5) of the VAT Act. The learned Assistant Government Pleader also submitted that the Assistant Commissioner has wide powers under section 67, as also under section 45 of the said Act, to order detention of the goods in order to protect the interest of the revenue. The learned Assistant Government Pleader also raised contention of alternative remedy available to the petitioner. 9. Having, thus, heard the learned counsel for the parties and having perused the documents on record, insofar as the availability of alternative remedy is concerned, it is by now well settled that availability of remedy is not a bar to the Court exercising writ jurisdiction under Article 226 of the Constitution of India. If it is pointed out that the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to pay the tax due for three consecutive tax periods from him under the provisions of this Act; [d] having issued tax invoice or retail invoices, has failed to account for the said invoices in his books of account; [e] holds or accepts or furnishes or causes to be furnished a declaration, which he knows or has reason to believe to be false; [xxx] [g] has been convinced of an offence under this Act, or under the earlier law; [h] discontinues his business and has failed to urnish information regarding such discontinuing. [i] without entering into a transaction of sale issues to another dealer tax invoice, retail invoice, bill or cash memorandum, with intention to defraud the Government revenue; or [j] who has been found evading tax on account of variation in physical stock compared with his regular books of accounts; the Commissioner may at any time, for reasons to be recorded in writing and after giving the dealer an opportunity of being heard, cancel his certificate of registration from such date as may be specified by him. 13.Sub-section (11) of section 27 provides for publication of the particulars of dealers whose certificate of registration has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chases made from dealer in whose case, particulars have been published under sub-section (11) of section 27 of the Act, perhaps an argument may arise that the cancellation of registration may be ordered subsequently, however, with a back date as permitted under section 27(5) of the VAT Act and that, therefore, any purchases made during the interregnum would also not qualify for tax credit. The legislature, however, has advisably used the words purchases made from a dealer after the name of such dealer has been published under sub-section (11) of section 27 . 17.In the present case, admittedly, the order of cancellation of registration of M/s Surya Vinayak Industries Ltd. was passed on 6th March, 2012. Therefore, obviously, the publication as required under section 27(11) of the VAT Act would be sometime thereafter. In any case, therefore, for the purchases made by the petitioner from such dealer prior to 6th March, 2012, tax credit cannot be denied under sub-section (5) of section 11 of the VAT Act. 18.Additionally, we also do not find any provision under which the respondent No.2 could have detained the goods in the facts of the present case. The respondent No.2 has referre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cle, vessel or the place, and inspect the goods and records relating to the goods in question and elicit such information as was relevant. In the present case, the respondent No.2 has acted well beyond such powers. Plainly, the power under section 67(b) of the said Act was simply not available with the respondent No.2 for passing stop delivery order. 22.We may refer to section 45 of the VAT Act which pertains to provisional attachment. Of course, it is not the case of the respondents that in the present case, such powers have been exercised. Even otherwise, section 45 empowers the appropriate authority during pendency of any proceedings of assessment or re-assessment of turnover escaping assessment, to attach provisionally any property belonging to the dealer, if the Commissioner was of the opinion that for the purpose of protecting the interest of the revenue, it was necessary to do so. In the present case, the respondents have not invoked such powers. Without further elaboration, therefore, we do not examine the scope of section 45 of the VAT Act. 23.In the result, the action of the respondents in ordering stop delivery of the goods of the petitioner communicated throug ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
