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TMI Blog2019 (8) TMI 575X X X X Extracts X X X X X X X X Extracts X X X X ..... unt deposited by the writapplicant towards 20% of the predeposit as ordered by the appellate authority. We were inclined to take a very strict view of the matter. This is not the way and the manner to recover tax. The department should not get so much desperate for the revenue. The revenue is to be collected in accordance with law. The action at the end of the authorities in the present case is nothing short of extortion. The respondents directed to refund the amount of ₹ 1,49,27,723/- with interest at the rate of 6% p.a. from the date of 15/02/2019 from the date of 15/02/2019 shall be refunded to the writ-applicant within a period of One week from today without fail - petition allowed - decided in favor of petitioner. - R/SPECIAL CIVIL APPLICATION NO. 5357 of 2019 - - - Dated:- 7-8-2019 - MR J. B. PARDIWALA AND MR A. C. RAO, JJ. For The Petitioner (s) : MOHIT A GUPTA (8967) And MR AR GUPTA (1262) For The Respondent (s) : MS MAITHILI MEHTA, AGP (1) ORAL JUDGMENT ( PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) 1. By this writ-application under Article 226 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.1 That the petitioner herein, Micromax Informatics Limited is an Indian consumer electronics company, duly registered under the provisions of the Companies Act, 2013, with its local office at C/o. Neeta Enterprices, T3031, Tirupati Estate, Opp. Ekta Hotel, Aslali Bye Pass Aslali, Ahmedabad 382427. It has its corporate office at Plot No.288A, Near Audi Service Center, Phase-IV, Sector 18, Udyog Vihar, Gugaon 122016, Haryana and is a registered dealer under the provisions of Gujarat Value Added Tax Act, 2003 (hereinafter, GVAT Act ) and is hence entitled to the fundamental rights and legal rights enshrined under the Constitution of India and various statutes. 2.2 That the Respondent No.1 is the State of Gujarat through the office of Commissioner of Sales Tax; the Respondent No.2 is the Joint Tax Commissioner (Appeals), the Respondent No.3 is the Deputy Commissioner (Sales Tax) and Respondent No.4 is Commercial Tax Officer, Ghatak. All Respondents are authorities under the GVAT Act in accordance with the laws of India and have their offices at the address mentioned in the cause title hereinabove. 2.3 That the present writ petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annexures received with the impugned order and inquiries made. 2.8 From the documents annexed with the assessment order, it seems that the assessment has been done without accounting for adjustment in sales made in lieu of the goods which were returned by the purchasing dealers of the Appellant and tax benefit worth INR 7,858,080/has been disallowed on that account. Further some adjustment (INR 365,776) has been disallowed due undisclosed reasons. The petitioner has produced credit notes and corresponding debit notes as proof of the aforesaid sales return. 2.9 The Appeal alongwith the application was fixed for hearing on 29.01.2019. However, the petitioner's counsel was informed that due to some internal notification, all the matters related to appeal before VAT Commissioner were to be transferred before the GST Commissioner. For this reason, the matter was not taken up for hearing on 29.01.2019 and the petitioner's counsel was informed that the next date will be intimated in due course. 2.10 That in the meanwhile, on 25.01.2019, the petitioner's bank received a notice under Section 44 of the GVAT Act from Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation regarding the rest of the amount. Upon obtaining clarification 12.02.2019, the petitioner paid the rest of the 20% amount i.e.₹ 13,40,777/on 14.02.2019. 2.15 That, in the meanwhile, to the utter shock of the petitioner, the Respondent No.1 coerced the Bank to release a demand draft to the tune of ₹ 1,49,27,723/[ One Crore Forty Nine Lakh Twenty Seven Thousand Seven Hundred and Twenty Three rupees], i.e.the entire disputed demand and encashed the same on 15.02.2019 vide DD No.ING150219007, without any advance notice to the petitioner. 2.16 That the petitioner's counsel brought this to the notice of Respondent No.2 who passed an order of stay on recovery operative until 31.05.2019 on 18.02.2019. The Respondent No.2 addressed this order to Respondent No.4 as well. 2.17 That the petitioner's counsel gave filed applications for refund of the amount recovered through coercive action on 18.02.2019. However, no response to the said application has been received by the petitioner. In the meanwhile, the Respondent No.2 has informed the petitioner that he is not in a position to pass an order of refund pending dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . the entire disputed amount and encashed the same on 15/02/2019 vide D.D. No.ING150219007 without any advance notice to the company. 8. The position, as on date, is that the respondent no.1 is holding an amount of ₹ 1,49,27,723/as well as the amount of ₹ 29,85,544/[ 20% predeposit]. 9. In such circumstances, the writ-applicant prays that as the amount of ₹ 29,85,544/has been deposited as ordered by the appellate authority, the amount of ₹ 1,49,27,723/should be refunded by the respondent no.1 with interest at the rate of 12% p.a. 10. Having heard the learned counsel appearing for the parties and having gone through the materials on record, we are of the view that the action on the part of the concerned authorities could be termed as absolutely highhanded and arbitrary. The facts of this case speak for themselves. In the course of the hearing of this matter, the Officer assisting the learned AGP went to the extent of even making a statement that the amount of ₹ 1,49,27,723/is not to be recovered from the writ-applicant. He conceded to the fact that while determining this amount, there is an error. He also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 warrant for the respondent authorities to proceed to initiate coercive recovery in exercise of powers under section 44 of the Act by attaching the bank accounts of the petitioner. In the opinion of this court, the conduct of the fourth respondent in attaching the bank accounts under section 44 of the Act in the facts and circumstances of the case was not warranted when the appeals preferred by the petitioner together with the stay applications were pending consideration before the first appellate authority. 14. The Second decision is of the Andhra Pradesh Court in the case of AnabeShahi Wines and Distilleries Private Limited Vs. Appellate Deputy Commissioner, Secunderabad Division, Nampally, Hyderaband 21 APSTJ 98 AND Katuri Medical College and Hospital Vs. Commercial Tax Officer Others, 62 VST 185 (AP) , wherein the Court observed as under:- The basis of the principle in AnabEShahi Wines case [1995] 98 STC 386 (AP); 21 APSTJ 98, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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