Gujarat High Court
Shreenath Plastopack Pvt.Ltd. Through ... vs State Of Gujarat on 15 June, 2023
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
NEUTRAL CITATION
C/SCA/405/2021 ORDER DATED: 15/06/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 405 of 2021
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SHREENATH PLASTOPACK PVT.LTD. THROUGH DIRECTOR
RAJKISHOR CHAITANYAKISHOR CHATURVEDI
Versus
STATE OF GUJARAT
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Appearance:
HIREN J TRIVEDI(8808) for the Petitioner(s) No. 1,2
for the Respondent(s) No. 2,3,5
MR.SHRUNJAL SHAH, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 15/06/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE DEVAN M. DESAI) [1] By way of the present petition under Articles 14, 19, 226 and 227 of the Constitution of India, the petitioners have challenged the common order passed by the Gujarat Value Added Tax Tribunal dated 14.08.2008 and First Appeal order dated 17.04.2008 passed by the learned Deputy Commissioner of Commercial Tax, (Appeal-4), Vadodara and Assessment Order dated 30.03.2007 passed by the Assistant Commissioner of Commercial Tax, (Unit-7), Vadodara and First Appeal Page 1 of 7 Downloaded on : Sat Sep 16 20:16:23 IST 2023 NEUTRAL CITATION C/SCA/405/2021 ORDER DATED: 15/06/2023 undefined order dated 11.09.2020 passed in remand proceedings by Deputy Commissioner of Commercial Tax, (Appeal-5), Vadodara.
[2] The petitioners have prayed for the following reliefs:
"18(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or writ in the nature of mandamus or any other writ, orders or directions to quash and set aside the impugned assessment order dated 30.03.2007 passed by Assistant Commissioner of Commercial Tax, Unit-7, Vadodara (at Annexure- C), and First Appeal order dated 17.04.2008 passed by learned Deputy Commissioner of Commercial Tax (Appeal-4) (at Annexure-D), Vadodara and common order of Hon'ble Gujarat Value Added Tax Tribunal dated 14.08.2008 (at Annexure-F) and First Appeal order dated 11.09.2020 passed Deputy State Tax Commissioner, Appeal-5 (at Annexure-G); (B) YOUR LORDSHIPS may be pleased declare that the assessment order dated 30.03.2007 passed by Assistant Commissioner of Commercial Tax, Unit- 7.
Vadodara (at Annexure-C) is barred by limitation and is passed beyond time limit provided under section 42(1)(a) of the Act;
(C) During the Pendency and Final Disposal of the present petition YOUR LORDSHIPS may be pleased to issue orders or directions to stay further implementation and execution of impugned assessment order dated 30.03.2007 passed by Page 2 of 7 Downloaded on : Sat Sep 16 20:16:23 IST 2023 NEUTRAL CITATION C/SCA/405/2021 ORDER DATED: 15/06/2023 undefined Assistant Commissioner of Commercial Tax, Unit- 7, Vadodara (at Annexure-C), and First Appeal order dated 17.04.2008 passed by learned Deputy Commissioner of Commercial Tax (Appeal-4) (at Annexure-D), Vadodara and common order of Hon'ble Gujarat Value Added Tax Tribunal dated 14.08.2008 (at Annexure-F) and First Appeal Order dated 11.09.2020 passed Deputy State Tax Commissioner, Appeal-5 (Annexure-G) and further be pleased to direct the respondent-authorities not to take any coercive actions pursuant to aforementioned orders;
(D) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case." [3] Heard the learned advocate Mr.Hiren Trivedi for the petitioners and Ms.Shrunjal Shah, learned AGP for the respondents.
[4] The brief facts leading to the present petition are as under:
st 4.1 The petitioner Company was established on 31 March, 1986, inter alia, engaged in the business of manufacturing of polymer plastic bags. The petitioner company is a registered company under the Act as well as the Central Sales Tax Act, 1956 (hereinafter referred Page 3 of 7 Downloaded on : Sat Sep 16 20:16:23 IST 2023 NEUTRAL CITATION C/SCA/405/2021 ORDER DATED: 15/06/2023 undefined to as the 'CST Act'). The petitioner company also obtained fresh registration as per amendment in Section 30A vide Gujarat Sales Tax (Second Amendment) Act, 2001 and the petitioner was granted a new registration number bearing 1922000831 on 01.07.2002. The Central Sales Tax (CST) registration number remained the same. 4.2 It is submitted by the learned advocate for the petitioners that a search operation was carried out at the business place of the petitioner company on the ground that the petitioner company is not paying tax which is collected in the bills and accordingly, the books of accounts of the petitioner no.1 company were seized.
The common notice of assessment for the Assessment Year, 2001-02 to 2003-06 came to be issued by the Assessing Officer in Form 36 pursuant to Rule 35 of the Gujarat Sales Tax Rules. A Show-cause notice was also issued by the Assessing Officer to the petitioner company. Pursuant to the said Show-cause notice, the petitioner - company submitted its submission accordingly. The Assessing Officer, as per the submission of learned advocate for the petitioner, passed the assessment order on 30.03.2007.
4.3 Being aggrieved by the said order, the Page 4 of 7 Downloaded on : Sat Sep 16 20:16:23 IST 2023 NEUTRAL CITATION C/SCA/405/2021 ORDER DATED: 15/06/2023 undefined petitioner - company preferred an appeal before the Deputy State Tax Commissioner (Appeal-4), Vadodara i.e. respondent no.3. Vide order dated 17.04.2008, the respondent no.3 quashed and set aside the Assessment Order and remanded the matter. Pursuant to the said observations of the First Appellate Authority, fresh notice was issued for the Assessment Year 2002-03 on 08.07.2008. The order passed by the First Appellate Authority, the petitioner preferred an appeal before the Gujarat Value Added Tax Tribunal (Vat) i.e. respondent no.5. Vide order dated 14.08.2008, the Tribunal has set aside the impugned order dated 17.04.2008 and remanded back the matter to the Appellate Authority for its fresh decision. Thereafter, the Deputy State Tax Commissioner (Appeal-5) - respondent no.4 passed the order dated 11.09.2020, whereby the assessment order was restored and the appeal of the petitioner was dismissed. Against the said order, the petitioners are before this Court. [5] The respondent Authority has submitted Affidavit-in-reply and has vehemently contested this petition and one of the contentions is that the petitioner has efficacious alternative remedy to approach the Page 5 of 7 Downloaded on : Sat Sep 16 20:16:23 IST 2023 NEUTRAL CITATION C/SCA/405/2021 ORDER DATED: 15/06/2023 undefined Tribunal challenging the order dated 11.09.2020 passed by the First Appellate Authority under Section 65 of the Gujarat Value Added Tax Act, 1969.
[6] It is submitted by the learned Assistant Government Pleader that since the efficacious alternative remedy is provided under the Gujarat Value Added Tax, therefore, the petition is not maintainable. [7] Learned Assistant Government Pleader has relied upon Sub-section 2 of Section 65 of the Gujarat Value Added Tax Act, 1969 which reads as under:-
'65(2) In the case of an order passed in appeal an Assistant Commissioner, a second appeal shall lie, at the option of the appellant, either to the Commissioner or to the Tribunal."
[8] In view of the above provisions of Sub-section 2 of Section 65 of the Gujarat Value Added Tax Act, 1969, the petitioners have efficacious alternative remedy to canvass its grievances before the Tribunal. Hence, we are of the considered opinion that the petitioners, if relegated to the Tribunal for adjudication of its grievances, the ends of justice would be met with. Page 6 of 7 Downloaded on : Sat Sep 16 20:16:23 IST 2023
NEUTRAL CITATION C/SCA/405/2021 ORDER DATED: 15/06/2023 undefined [9] It is observed that as and when the petitioners approach to the Tribunal by way of an appeal, the issue of pre-deposit of the amount is left open and if any application for waiver of the condition of pre-deposit is made by the petitioners, the Tribunal shall decide the same in accordance with law.
[10] With the aforesaid observations, the petition is disposed of. It is needles to clarify that this Court has not opined anything on the merits of the case and all the contentions of both the parties are kept open for its adjudication.
(VIPUL M. PANCHOLI, J) (D. M. DESAI,J) MANOJ Page 7 of 7 Downloaded on : Sat Sep 16 20:16:23 IST 2023