9911796707
TMI Blog2021 (4) TMI 1174X X X X Extracts X X X X X X X X Extracts X X X X ..... pt of copy of this order. Petition disposed off. - R/SPECIAL CIVIL APPLICATION NO. 4237 of 2021 - - - Dated:- 22-4-2021 - HONOURABLE MS. JUSTICE SONIA GOKANI AND HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI Appearance: MS VAIBHAVI K PARIKH (3238) for the Petitioner(s) No. 1 for the Respondent(s) No. 2 MR KRUTIK PARIKH, AGP for the Respondent(s) No. 1 ORAL ORDER (PER : HONOURABLE MS. JUSTICE SONIA GOKANI) 1. The petitioner by way of present petition under Article 226 of the Constitution of India, challenges the order dated 19.01.2021 passed by the Respondent No.2 under Section 44 of the Gujarat Value Added Tax Act, 2003 ( the GVAT Act for the sake of further reference) whereby the bank account of the petitioner with the ICICI Bank numbering 025905004589 has been attached. This according to the petitioner is for recovery of the demand raised for the year 20082009 in relation to one M/s. Arzee International name of which was, later on, changed to M/s. Arzee Rags (India) P. Ltd . 2. The petitioner is a company incorporated under the Companies Act, 1956 which is engaged in the business of importing, exporting old clothes and of reselling the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner has raised the serious grievance that due to technical glitches, practically, hearing through the video conference could not take place and on the next day i.e. 02.02.2021, when the request was made to the Tribunal to take up the matter of the petitioner by the learned advocate, it was given to understand that the matter had been adjourned to 15.03.2021. However, on the website of the tribunal, the matter was not shown to have been adjourned to the said date. 9. The aggrieved petitioner is, therefore, before this Court with a grievance that the demand-iquestion when is not justifiable on merits in view of the specific stand taken by the petitioner and also because of set of evidences which has been produced before the authority concerned, the act of respondent of attaching the bank account for the demand of the year 2008-09, during the pendency of the second appeal as also the request of stay, is wholly an unjustifiable action. Therefore, he has approached this Court with the following prayers: 7. The petitioner, therefore, prays that this Hon ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or a writ of certiorari or a writ in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjourned the matter, it could not have exercised its powers under Section 44 of the GVAT Act, of attaching the account. This would also mean that the petitioner has been grossly non suited. It also would amount to prejudging the issue and defeating the rights of party of taking legal recourse and getting its matter adjudicated. On one hand, the authority questions the very locus of the petitioner to proceed with the litigation as the very competence of the petitioner is questioned so far as the second appeal is concerned and on the other hand, it choses to attach the bank account of the present petitioner. Both the things cannot go together of questioning the legal competence of the petitioner to file a second appeal and to also attach the bank account on the ground of having availed legal succession under the concerned Act. 11. Learned AGP, Mr. Krutik Parikh, appearing for the State on a advance copy being given to the State, has assisted the cause by pointing out to the Court that when the petitioner is already before the concerned authority in a second appeal numbering to 280 of 2020, let the very authority decide the matter on merits. It also can decide as to whether the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the bank account. The second appeal came up for hearing on 15.02.2021 however, on those days the question of competency and maintainability of the appeal had been raised without adjudicating upon the issues which are framed, that had associated continuation of the litigations before this Court which was on 08.02.2021. 13. Noticing on one hand raising of question of competence and maintainability of the second appeal preferred by the present petitioner and on the other hand, attaching of the bank account of the very party, prior to adjudication of this issue raised in an application for the stay of recovery of demand raised pursuant to the attachment order for the year 2008-09, is an anomaly which appears irreconcilable. This Court would have chosen to entertain this petition, but for the pendency of the second appeal, to which the petitioner himself has taken recourse to and therefore, without entering into the merits, this Court deems it appropriate to relegate the parties to the second appellate authority to decide the application for stay of not to take coercive steps for recovery of demand of the order of the first appellate authority within two weeks from the date of rec ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
