9911796707
TMI Blog2023 (3) TMI 795X X X X Extracts X X X X X X X X Extracts X X X X ..... returnable forthwith. Learned Assistant Government Pleader Mr.Aditya Pathak waives service of rule on behalf of both the respondents. 1.2 Heard learned advocate Mr.Uchit Sheth for the petitioner and learned Assistant Government Pleader. 2. By filing present petition under Article 226 of the Constitution, the petitioner has prayed to set aside the notice dated 1.9.2022 as well as the consequential order dated 16.9.2022 passed under Section 34(8A) of the Gujarat Value Added Tax Act, 2003. 3. It appears that when the prayers originally framed, it was the notice which was sought to be challenged, whereas the order came to be passed during the pendency of the petition which was challenged by submitting a draft amendment by adding further grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd penalty and interest, if any, shall be levied or demanded from such dealer, at the time of assessment to tax under the other provisions of this section in respect of the said period or periods relating to such transaction or claim. Explanation. - For the purpose of this subsection, "prescribed authority", "the said authority", "such authority" and "any authority" shall mean, the Commissioner or, as the case may be, the authorities appointed under section 16 and other officers or persons to whom the Commissioner has delegated his power in this behalf.]" 3.4.2 The aforesaid provision contemplates that during the course of any proceedings under the Act if the authority concerned is satisfied that the tax has been evaded or sought to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Another Vs. State of Gujarat and Another [(2017 98 VST 439 (Guj)], the Division Bench of this court in the context of operation and exercisbilty of powers under Section 34(8A)(a), (9) as also Section 35(1), (2) of the Act, considered the issue to observe and held as under, "There is yet another strong reason why we can not upheld the action of the respondent authorities. Clause(a) of subsection (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 therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs under Section 34(8A) of the Act. When learned Assistant Government Pleader was confronted with the aforesaid aspect and non-compliance of the condition precedent for exercise of powers of assessment, he was entirely at his receiving end. 6. In view of the above, since the basic condition 'during the course of any proceedings under the Act' of Sub section (8A) of Section 34 of the Act is not satisfied and no proceedings under the Act are pending, the impugned notice dated 1.9.2022 and the assessment order dated 16.9.2022 stands without jurisdiction. It is an incurable jurisdictional defect and illegality rendering the notice and the order liable to be set aside. 7. Accordingly, notice dated 1.9.2022 and order dated 16.9.2022 are set as ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
