Ashok Industries Through Proprietor Ramnikbhai Dhirubhai Vasani vs. State Of Gujarat
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The petitioner, Ashok Industries, filed a writ-application challenging assessment proceedings initiated under the CGST and SGST Acts for the period of 01.07.2017 to 31.03.2018. The petitioner also sought to quash an order dated 30.07.2019 provisionally attaching its property. The petitioner had incurred a liability under the Gujarat Value Added Tax Act. The Court noted that an assessment order had been passed, followed by a rectification assessment order reducing the liability. The Court was informed that the provisional attachment order had outlived its statutory time period and was no longer in operation. The petitioner requested a copy of the final assessment order to enable them to file an appeal.
Held
The Court declined to interfere with the legality and validity of the assessment order and the rectified assessment order, stating that as the assessment order is appealable, the Court should not interfere in its writ jurisdiction. Regarding the provisional attachment order, the Court noted that it was dated 30.07.2020 and had outlived its statutory time period, thus it was no longer in operation. The Court directed the Assistant Commissioner of State Tax to provide a copy of the original assessment order to the writ-applicant within one week. Upon receipt, the writ-applicant may, if deemed fit, prefer an appeal. The Court did not expressly leave any issue undecided, but the core challenge to the assessment proceedings was not adjudicated on merits due to the availability of an alternative remedy.
Key Issues
1. Whether the assessment proceedings initiated under the CGST Act and/or SGST Act against the petitioner for the period 01.07.2017 to 31.03.2018 are without jurisdiction and authority, warranting interference by this Court in its writ jurisdiction? 2. Whether the order of provisional attachment of the petitioner's immovable property dated 30.07.2019 is liable to be quashed and set aside? Petitioner's arguments: The petitioner contended that the assessment proceedings were without jurisdiction and authority. They also sought to quash the provisional attachment order. The petitioner requested a copy of the final assessment order to enable them to file an appeal before the appellate authority. Revenue's arguments: The judgment records that the learned AGP appearing for the respondents was awaiting instructions from the concerned Department regarding the exact liability of the writ-applicant. No specific arguments were recorded for the revenue regarding the jurisdiction of the assessment proceedings or the validity of the attachment order.
Sections Cited
Section-45
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Cause title — parties, addresses and appearances
ORAL ORDER (PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
By this writ-application under Article 226 of the Constitution of India, the writ-applicant – a Proprietory concern through its Proprietor has prayed for the following reliefs:- 8(A) to issue a writ of certiorari or any other appropriate writ, order or direction in the nature of certiorari, quashing and setting aside the impugned orders (Annexure-A) and further be pleased to direct respondent to release property of petitioner attached vio attachment order dated 30.07.2019 (Annexure-A). (B) to issue a writ of certiorari or any other appropriate writ, order or direction in the nature of certiorari, quashing and setting aside assessment proceedings initiated under CGST Act and/or SGST Act against petitioner for the Assessment Period of 01.07.2017 to 31.03.2018, being without juri iction and authority. (C) pending admission, hearing and/or final disposal of this petition, be pleased to direct respondent not to initiate any C/SCA/3355/2021 ORDER DATED: 16/02/2022 coercive action including any audit, show cause notice, search, seizure or assessment with regards to demand raised via impugned orders dated 18.12.2020; (D) pending admission, hearing and/or final disposal of this petition, be pleased to stay assessment proceedings initiated under CGST Act and/or SGST Act against petitioner for the Assessment Period of 01.07.2017 to 31.03.2018. (E) to pass such other and further order/s as may be just and necessary in the circumstances of the case.
We have heard Mr. Dev Patel, the learned counsel appearing for the writ-applicant and Mr. Utkarsh Sharma, the learned AGP appearing for the respondents.
It appears from the materials on record that the writ-applicant has incurred a liability to pay tax alongwith the penalty and interest under the provisions of the Gujarat Value Added Tax Act.
We heard this matter for some time in the first session. We requested Mr. Sharma to take instructions from the concerned Department as regards the exact liability of the writ-applicant. In the second session, when we took up the matter, Mr. Sharma submitted that he is still awaiting the necessary instructions. However, Mr. Dev Patel, the learned counsel appearing for the writ-applicant submitted that the Department may furnish him with a copy of the final assessment order to enable his client to challenge the same by filing an appropriate appeal before the appellate authority.
It appears that after the assessment order came to be passed, a rectification assessment order came to be passed reducing the C/SCA/3355/2021 ORDER DATED: 16/02/2022 liability. We do not intend to look into the legality and validity of the assessment order as well as the rectified assessment order. An assessment order being an appealable order, this Court in exercise of its writ-juri iction should not interfere.
It appears that the writ-applicant is also aggrieved by the action on the part of the concerned authority in passing an order of provisional attachment of his immovable property in exercise of powers under Section-45 of the Act.
The order of provisional assessment is dated 30.07.2020. The order of provisional assessment has outlived its statutory time period. As on date, it can be said to no longer in operation.
The respondent no.2 – Assistant Commissioner of State Tax, Amreli, Unit-82 is directed to provide one copy of the original assessment order to the writ-applicant within a period of one week from today without fail. The writ-applicant upon receipt of such order may, thereafter, if deems fit prefer an appeal challenging the same.
With the aforesaid this writ-application stands disposed of. Direct service is permitted. (J. B. PARDIWALA, J) (NISHA M. THAKORE,J) A. B. VAGHELA
Reproduced from the public record of the Gujarat High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.