9911796707
TMI Blog2023 (3) TMI 795X X X X Extracts X X X X X X X X Extracts X X X X ..... for exercising powers under Section 34(8A) has not been satisfied, namely that any proceedings under the Act are not pending so as to invest the authority with the power to proceed under Sub section (8A) of Section 34. When the Section expressly contemplates that the assessment under the said provisions could be resorted to only during the proceedings under the Act, the powers has to be exercised in that manner only and upon fulfillment of the said condition. In the facts of the case there is no gainsaying that any proceedings are not pending so as to justify the assessment proceedings under Section 34(8A) of the Act. When learned Assistant Government Pleader was confronted with the aforesaid aspect and non-compliance of the condition p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 grounds of challenge as well. 3.1 The petitioner which is a public limited company having its place of business at Village Meghpar- Borichi District Kachchh and having factory at Village Chhasara, Taluka Mundra, District Kachchh, was subjected to audit assessment under Section 34(2) of the Value Added Tax Act, 2003 (hereinafter referred to as the Act ) for the assessment yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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 transaction or claim: Provided further that the prescribed authority shall, notwithstanding anything contained in section 17, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority 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 evaded or is not recorded correctly in respect of any transaction of sale or purchase or there any such claim has been incorrectly made, after giving notice to such dealer and extending reasonable opportunity, the officer would initiate the assessment in respect of such transaction or claim. 3.4.3 The assessment which is contemplated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 therefore, would be sine qua non for exercise of such powers. Admitted facts are that no proceedings for assessment of the petitioner were pending on that day. 4.1 It was further observed, The return filed by the petitioner for the relevant year was long past assessed and closed. We are not inclined to accept the contention o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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