Gujarat High Court
Lallooji vs State on 11 August, 2011
Author: Akil Kureshi
Bench: Akil Kureshi
Gujarat High Court Case Information System
Print
SCA/8178/2011 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 8178 of 2011
=========================================================
LALLOOJI
& SONS - Petitioner(s)
Versus
STATE
OF GUJARAT - REPRESENTED BY THE COMMISSIONER OF & 1 -
Respondent(s)
=========================================================
Appearance
:
MR
AJ SHAIKH
for
Petitioner
Ms. Maithili Mehta AGP for
Respondents
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
and
HONOURABLE
Ms JUSTICE SONIA GOKANI 11th August 2011
ORAL
ORDER (Per
: HONOURABLE MR.JUSTICE AKIL KURESHI) The petitioner is in the business of erecting Shamiana/mandaps and providing related facilities for holding events. The petitioner has executed several such contracts with the State Government itself. In the present petition, the grievance of the petitioner is two fold. At the time when the petition was initially filed, the petitioner had challenged the action of the respondents in attaching the petitioner's bank accounts and also his immovable properties by virtue of impugned communication Annexure "A" & "B". During the pendency of the petition, the respondents also issued an Assessment Order dated 29th March 2011 demanding tax of Rs. 42,34,153/= inclusive of interest for the year 2006-2007. By way of an amendment, the petitioner has also brought this order under challenge in this petition.
Counsel for the petitioner vehemently contended that the petitioner as a Mandap provider is not exigible to VAT since the petitioner is not involved in the sale of goods. He submitted that the petitioner is a service provider, for which he has received registration number from the Sales Tax authorities. Heavy reliance was placed on the decisions of the Apex Court in the case of Tamil Nadu Kalyana Mandapam Association v. Union of India & Ors., reported in 135 STC 480 and in the case of State of Andra Pradesh & Anr. v. Rashtriya Ispat Nigam Limited, reported in 126 STC 114.
Counsel further submitted that the respondents have, without even verifying the petitioner's liability, attached its bank accounts and other immovable properties in exercise of powers under Sections 44 & 45 of the Gujarat Value Added Tax Act, 2003.
On the other hand, learned AGP Ms. Mehta submitted that against the Assessment Order, statutory appeal is available under Section 73 of the Act and such appeal has also been filed. The petitioner cannot maintain challenge to such assessment order in the present petition.
Learned AGP further submitted that the attachment of bank accounts and properties of the petitioner was necessary since the petitioner had not paid VAT for years together which came to be estimated at over Rs. 1 Crore.
Having heard learned counsel for the parties, in so far as the order of assessment is concerned, we are not inclined to interfere since the petitioner is in appeal. As such, the appellate authority will examine all aspects of the case including the decisions of the Apex Court which may be cited. Counsel for the petitioner, however, submitted that the stay application and pre-deposit waiver application has not been decided by the appellate authority. We request the appellate authority to decide such application expeditiously and within eight weeks from the date of receipt of the copy of this order, without being influenced by the observations made in this order.
In so far as freezing of the bank accounts is concerned, we prima facie find that so far the subsequent liability of the petitioner to pay V.A.T is not yet ascertained. In fact, the petitioner's contention is that it is not exigible to VAT at all. Be that as it may, at this stage, we find that the exercise of power u/s. 44 & 45 of the Act to freeze the bank accounts would be harsh. Under the circumstances, we permit the petitioner to offer security to the satisfaction of the concerned authorities by way of immovable properties to the respondents for an amount of Rs. 13,50,00,000/= [which is estimated dues post 2007]. If so done, the authorities shall immediately pass an order lifting the attachment on the bank accounts.
With the above direction, this petition stands disposed of.
{Akil Kureshi, J.} {Ms. Sonai Gokani, J.} Prakash* Top