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TMI Blog2021 (2) TMI 248X X X X Extracts X X X X X X X X Extracts X X X X ..... ed without jurisdiction. The impugned order dated 08.07.2019 passed by the respondent no.2 Annexure- D to the writ -application is hereby quashed and set aside - Application allowed. - R/SPECIAL CIVIL APPLICATION NO. 12311 of 2020 With CIVIL APPLICATION (FOR FIXING DATE OF HEARING) NO. 2 of 2020 In R/SPECIAL CIVIL APPLICATION NO. 12311 of 2020 - - - Dated:- 27-1-2021 - HONOURABLE MR. JUSTICE J.B. PARDIWALA AND HONOURABLE MR. JUSTICE ILESH J. VORA Appearance: YUVRAJ G THAKORE(7785) for the Petitioner(s) No. 1 NOTICE SERVED(4) for the Respondent(s) No. 1,2 ORAL ORDER (PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA) 1. By this writ -application under Article 226 of the Constitution of India, the writ -applicant a Company incorporated under the provisions of Companies Act, 1956 through one of its Director has prayed for the following reliefs: 11(A) be pleased to issue an appropriate writ in the nature of certiorari or any other appropriate writ, order or direction, quashing and setting aside the order dated 08.09.2019 passed by the respondent no.2 authority and annexed at Annexure- D to the petition; (B) be pleased to issue a writ of cer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 21.02.2015. 2.4 Ultimately, the impugned order dated 08.07.2019 came to be passed by the Assessing Officer fixing the liability of ₹ 67,35,964/ . It appears that pursuant to the order passed by the respondent herein under Section 34(8A) of the GVAT Act, 2003 an attachment order dated 30.06.2020 came to be passed with respect to the bank account of the writ -applicant. This attachment order came to be passed in exercise of power under Section 44 of the GVAT Act, 2003. 3. Being dissatisfied with the afore said action, the writ -applicant is here before this Court with the present writ -application. 4. Mr. Yuvraj Thakore, the learned counsel appearing for the writ-applicant vehemently submitted that the impugned order dated 08.07.2019 passed by the respondent no.2 under Section 34(8A) of the GVAT Act is ex facie, illegal and without jurisdiction. He would submit that the period of assessment under Section 34(2) of the GVAT for the year under consideration 2010 -11 was completed in the year 2015 i.e. on 31st March, 2015 and the period of audit assessment [re assessment] under Section 35 of the GVAT was completed on 31st March 2016. He would argue that wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur consideration is whether the respondent no.2 could have invoked Section 34(8A) of the GVAT Act, 2003? 9. Section 34(8A) of the GVAT Act, 2003 reads thus: Section 34(8A)(a) During the course of any proceedings under this Act, if the prescribed authority is satisfied that the tax has been evaded or sought to be evaded or the tax liability has not been disclosed correctly or excess tax credit has been claimed by any dealer in respect of any period or periods by not recording or recording in an incorrect manner, any transaction of sale or purchase, or that any claim has been incorrectly made, then in such a case notwithstanding any notice for assessment has been issued under other provisions of this section or any other section of this Act, the prescribed authority may, after giving such dealer a reasonable opportunity of being heard, initiate assessment of the dealer in respect of such transaction or claim: Provided that where such proceedings are under section 73 or section 75, the prescribed authority shall transfer the proceedings relating to such transaction or claim directing the concerned assessing authority to assess the dealer in respect of such transacti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olds or may subsequently hold monies for or on account of such dealer, to pay to the Commissioner, either forthwith upon the monies becoming due or being held or within the time specified in the notice (but not before the monies becomes due or is held as aforesaid) so much of the monies as is sufficient to pay the amount due by the dealer in respect of the arrears of tax, penalty or interest under this Act, or the whole of the money when it is equal to or less than that amount. Explanation . For the purposes of this sub section, the amount of monies due to a dealer from, or monies held for or on account of a dealer by any person, shall be calculated by the Commissioner after deducting therefore such claims, if any, lawfully subsisting, as may have fallen due for payment by such dealer to such person. (2) The Commissioner may amend or revoke any such notice or extend the time for making any payment in pursuance of the notice. (3) Any person making any payment in compliance with a notice under this section shall be deemed to have made the payment under the authority of the dealer, and the receipt thereof by the Commissioner shall constitute a good and sufficient ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch is the factual position then the issue of limitation also pales into insignificant. 13. Mr. Dave has placed on record a communication received by him from the Commercial Tax Officer, Ahmedabad. The same reads as under: To The Commercial Tax Officer, Ghatak- 6 Ahmedabad. Subject: In the matter of Oceanic TVS Sir, This letter is to bring to your notice that the total sales to the tune of ₹ 1,73,76,400/ for the year 2010 -11 is towards sales of Used Four Wheelers vehicles. It is submitted that the Assessee had already submitted the details of the said sales. Even otherwise the total sale amount is around 1.73 crores and the total units of used vehicle sold are 68, dividing the total sales amount by the total unit sold would come to around 2.54 lacs which in any case cannot be the sales amount of two wheelers. Hence, the said sales are of four wheelers and not two wheeler vehicles. Regards, OCEANIC MOTORS PVT. LTD. Authorized Signatory/ Director USED MOTOR VEHICLES SALES 2010 -11 Month Sales Amount No. VAT Amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Gujarat Vs. Dhanani Impex Private Limited Diary No.27423 of 2017; Order dt.03.10.2017 3. Royal Enterprise Vs. State of Gujarat Special Civil Application No.18146 of 2016; Order dt.14.11.2016 4. State of Gujarat Vs. Royal Enterprise Diary No.32542 of 2017; Order dt.30.10.2017 5. H. Tribhovandas and Sons Vs. State of Gujarat Special Civil Application No.3002 of 2018; Order dt.16.04.2018 6. Samay Sales Through Proprietor Rajendra Jethabhai Keshwani Vs. State of Gujarat Special Civil Application No.6686 of 2018; Order dt.27.04.2018 7. Samay Sales Through Proprietor Rajendra Jethabhai Keshwani Vs. State of Gujarat Special Civil Application No.6686 of 2018; Order dt.16.07.2018 8. Raakratna Metal Industries Ltd. Vs. State of Gujarat Special Civil Application No.15093 of 2018; Order dt.20.06.2019 17. We may quote the relevant observations made in one of the orders referred to above i.e. in the case of Dhanani Impex Private Limited Vs. State of Gujarat Anr. [Supra]. We quote as under: 9. Section 35 pertains to turn over escaping assessment. sub-section (1) thereof provides that where after a dealer has been assessed under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where the original assessment and any scope by the Commissioner to revise the tax in terms of sub-section (1) of section 35 has long pass, been barred by limitation, would expose the provision to vulnerability on the ground of virus. 13. There is yet another strong reason why we cannot upheld the action of the respondent authorities. Clause(a) of sub-section (8A) which empowers the prescribed authority to collect tax when it is found that tax has been evaded or sought to be evaded or tax liability has not been disclosed correctly or excess tax has been claimed, the same can be done during the course of any proceedings if the prescribed authority is so satisfied. The pendency of proceedings therefore, would be sine quanon for exercise of such powers. Admitted facts are that no proceedings for assessment of the petitioner were pending on that day. The return filed by the petitioner for the relevant year was long past assessed and closed. We are not inclined to accept the contention of the counsel for the petitioner that the proceedings referred to in clause (a) of sub-section (8A) must relate to the assessment of that period alone. Nevertheless, when the legislature has used the ..... 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