9911796707
TMI Blog2019 (8) TMI 575X X X X Extracts X X X X X X X X Extracts X X X X ..... or direction to the Respondents to refund forthwith the disputed amount of tax i.e.1,49,27,723/( One Crore Forty Nine Lakhs Twenty Seven Thousand Seven Hundred and Twenty Three rupees), appropriated by the Respondents through coercive action under Section 44 of the GVAT Act in terms of notice annexed at Annexure D to this petition to the petitioner, as an adinterim relief pending disposal of this Special Civil Application; (BB) Be pleased to grant interest at the rate of 12% per annum along with the refunded amount from the date of illegal recovery done by the Respondents, i.e., from 15.02.2019 till the date of refund in the interest of justice and to further award costs of Rs. 1 lakh in favour of the petitioner in the interest of justice. (C) Be pleased to declare the recovery proceedings under Section 44 of the GVAT Act, 2002 by the Respondents pending stay application filed by the petitioner as being illegal, null & void abinitio, without the authority of law, without jurisdiction and quash the recovery notice annexed at AnnexureD of this application. (D) Be pleased to restrain the Respondents from taking any further steps with respect to the assets of the petitioner p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the grounds of inquiry. The petitioner accordingly produced the books of accounts, sales invoices, credit and debit notes related to FY 201415. 2.5 That on 30.10.2018, a nonspeaking assessment order was passed by the Respondent No.3 i.e. Deputy Commissioner of State Tax (Corporate2) DivisionI, Ahmedabad (hereinafter referred to as the "Assessing Officer") under Section 34(1) of the Gujarat Value Added Tax Act, 2003 ("GVAT" Act) whereby the Assessing Officer wrongly assessed the payable tax due against the appellant for the FY 201415 and directed the appellant to pay a sum of Rs. 1,49,27,723/[ One Crore Forty Nine Lakh Twenty Seven Thousand Seven Hundred and Twenty Three rupees] inclusive of the interest. 2.6 That the petitioner filed an appeal under Section 73 of the GVAT Act, 2003 r/w Rule 54 along with stay application against the assessment order dated 30.10.2018 before Respondent No.2 on 21.01.2019 (hereinafter referred to as "Appeal"). 2.7 The assessment order has been challenged inter alia as being in violation of natural justice, as it was issued without issuing a proper and detailed show cause notice prior to the assessment. Further, the assessment order is a nons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.12 Thereafter, the petitioner's counsel approached Respondent No.2 before whom the appeal was pending, and informed them about the recovery notice. That Respondent No.2 was requested to hear and disposeoff the stay applications at the earliest. That the Respondent No.2 on 07.02.2019, directed the Petitioner to pay 20% of the disputed tax within a week as predeposit and precondition to grant of stay and assured a stay order on fulfillment of the said condition. The said direction was recorded in the "Rojkam" maintained by Respondent No.2. 2.13 The petitioner's counsel simultaneously gave a representation to recovery officer, i.e. Respondent No.4, i.e. the Commercial Tax Officer at Ghatak, to not undertake any coercive action in light of pendency of the stay application and the direction given by Respondent No.2, along with the proof of filing of appeal and stay application. 2.14 That on 08.02.2019, the petitioner made a payment of 20% of the disputed tax amount, i.e.Rs. 16,44,767/in terms of the directions dated 07.02.2019. However, there was some confusion as to whether 20% of the interest amount was to be paid or not, as a copy of the direction dated 07.02.2019 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he company received a notice under Section 44 of the Act from the respondent no.3 demanding the release of the amount referred to above. It is not in dispute that no copy of the said notice was ever served on the company and the company was not even aware regarding such notice. The appeal preferred by the company alongwith the stay application was fixed for hearing on 29/01/2019. However, on that day, the matter was not taken up for hearing. The company informed its bank on 05/02/2019 about the pendency of the appeal and the stay application and also, requested not to release the amount. 5. It appears that thereafter, the appellate authority passed an order dated 07/02/2019 directing the company to deposit 20% of the disputed tax within a week as predeposit and precondition to grant of stay. 6. It is not in dispute that the amount of Rs. 29,85,544/as a predeposit came to be deposited constituting 20% of the disputed amount. 7. Despite deposit of the 20% of the amount towards the predeposit as ordered by the appellate authority, the respondent no.1 coerced the bank to release a demand draft to the tune of Rs. 1,49,27,723/[ Rupees One Crore Forty Nine Lakh Twenty Seven Thousand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It still wants to hold on to the entire amount Plus the amount deposited by the writapplicant towards 20% of the predeposit as ordered by the appellate authority. 13. We remind the respondents of the two decisions of this Court; - First, in the case of Automark Industries (I) Ltd. Vs. State of Gujarat and Ors. (Special Civil Application No.13641 of 2015), wherein this Court observed as under:- "The fourth respondent is required to keep in mind the fact that the petitioner has preferred appeals before the first appellate authority and that the stay applications are pending. That if the stay applications are allowed or partly allowed, the petitioner would be required to deposit only a part of the demand covered under the notice or may be even granted complete unconditional stay. Under the circumstances, it is expected of the fourth respondent to stay his hands till the stay application of the petitioner is decided, unless the stay application is not decided on account of default on the part of the petitioner or it is found that the petitioner is unnecessarily delaying the hearing of the stay application. However, in the absence of any exceptional circumstances, there is no warra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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