Gujarat High Court
M/S Vinayak Trxim vs State Of Gujarat on 7 August, 2019
Author: A.C. Rao
Bench: J.B.Pardiwala, A.C. Rao
C/TAXAP/5/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/TAX APPEAL NO. 5 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2018
In R/TAX APPEAL NO. 5 of 2019
With
R/TAX APPEAL NO. 6 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2018
In R/TAX APPEAL NO. 6 of 2019
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M/S VINAYAK TREXIM
Versus
STATE OF GUJARAT
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Appearance:
HIREN J TRIVEDI(8808) for the Appellant(s) No. 1
MR SOHAM JOSHI, ASST. GOVERNMENT PLEADER for the
Opponent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
and
HONOURABLE MR.JUSTICE A.C. RAO
Date : 07/08/2019
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE A.C. RAO)
1. These Tax Appeals under Section 78 of the Gujarat Value Added Tax Act, 2003 (for short "the GVAT Act) are at the instance of the assessee and are directed against the common order dated 09.08.2018 passed by the Gujarat Value Added Tax Tribunal at Ahmedabad (for short "the Tribunal") in the Second Appeals Nos. 221 to 226 of 2018 for the Assessment Year 2013-14, 2014-15 and 2015-16. These appeals arise out of the common impugned judgement above referred and Page 1 of 6 Downloaded on : Sun Oct 20 01:35:25 IST 2019 C/TAXAP/5/2019 ORDER hence decided by this common order.
2. The assessee has proposed the following common substantial questions of law in these appeals :
"(i) Whether the Hon'ble Tribunal has committed substantial error of law in directing appellant to pay the amount of pre-deposit even though the appellant was not required to pay such amount in light of law and facts therein?
(ii) Whether the Hon'ble Tribunal has committed substantial error of law in not assigning any reason for imposing condition upon the appellant to deposit the amount?
(iii) Whether the Hon'ble Tribunal has committed substantial error of law in not appreciating that eh order of the lower appellate authority was illegal and the assessments made were not sustainable in law?"
3. The brief facts leading to the present appeals are as under :
3.1 The appellant is a registered dealer trading in commodities of pan masala, plywood, automobile parts and accessories. According to his registration record, his place of business is 602, Shikhar Complex, Nr. Vadilal House, Navrangpura, Ahmedabad and place of registration is shown Page 2 of 6 Downloaded on : Sun Oct 20 01:35:25 IST 2019 C/TAXAP/5/2019 ORDER as D-210, 3rd Floor, Vivek Vihar, Phase-1, Delhi.
3.2 It appears from the materials on record that the place of business of the assessee was visited by the Commercial Tax Officer (5), Unit-7, Vadodara on 19.01.2016.
At that time, the owner of the business Shri Ashokbhai Amrutbhai Jain and his authorized representative Shri Visheshkumar Ashkobhai Jain were not present and, therefore, the spot visit was conducted with the permission of Shri Nimitbhai, who was present at the place of business. The authorized representative Shir Visheshkumar appeared in the evening. During the process of spot visit, some irregularities were found out. Therefore, the mobile phones of the son of the assessee and authorized representative Shri Vishveshkumar were impounded. On 21.01.2016, during the process of investigation, the computer and hard-disc were taken for backup and mirror copy and working copy of the computer data were obtained by the computer expert. 3.3 The assessee was served with the notice for audit for the Assessment Year 2014-15. The show-cause notice was also served to the assessee on 27.01.2017 for providing him an opportunity to file reply with regard to defence and Page 3 of 6 Downloaded on : Sun Oct 20 01:35:25 IST 2019 C/TAXAP/5/2019 ORDER relevant documents. According to the Deputy Commissioner of Commercial Tax, Circle-2, Ahmedabad, the assessee had obtained the refund to the tune of Rs.1,08,80,598/- on producing fake documents, so he was charged with a penal interest of Rs.44,67,777/-. The Assessing Officer had held that the assessee was wrongly issued the provisional refund. Therefore, the total demand was raised for Rs.1,53,48,075 /- under the provisions of the GVAT Act. The said assessment was challenged by the assessee before the Joint Commissioner of Commercial Tax, Division (1), Ahmedabad. The said appeal was dismissed by order dated 18.12.2017.
3.4 Being aggrieved by the said order of the First Appellate Authority, the assessee had preferred Second Appeal before the Tribunal. The said appeal was dismissed by the Tribunal for non-payment of a pre-deposit which was directed to be paid vide common order dated 09.08.2018. It is pertinent to note that during the pendency of the appeal, the assessee was directed to pay a sum of Rs.20,00,000/- against the total demand of Rs.1,29,33,880/- for a period of 2013-14 to 2014-15 on or before 17.09.2018.
4. At the time of hearing of these appeals, Mr. Hiren J. Page 4 of 6 Downloaded on : Sun Oct 20 01:35:25 IST 2019
C/TAXAP/5/2019 ORDER Trivedi, the learned advocate appearing on behalf of the assessee has drawn the attention of this Court to the fact that according to the order dated 04.09.2014 passed by the Deputy Commissioner of Commercial Tax, B-3, Circle-2, Ahmedabad, produced at Annexure "C", there is a refund of Rs.20,53,282/- lying with the Revenue. It is contended that the said amount may be considered as a deposit and it is prayed to recall the condition of the Tribunal of depositing Rs.20,00,000/-. 4.1 Mr. Trivedi, the learned advocate for the assessee contended that the amount of the refund lying with the department is more than the demand raised by the Tribunal for pre-deposit.
5. Heard the learned advocate for the respective parties and considered the materials on record. Considering the facts and circumstances of the case, it appears that the assessee is desirous to pursue its First Appeals against the order of the assessment. It is an admitted fact that more than Rs.20,00,000/- of refund is withheld by the department which was virtually the amount of the assessee. The appellant assessee to make an application before the First Appellate Authority to treat the refund amount lying in his credit as pre- Page 5 of 6 Downloaded on : Sun Oct 20 01:35:25 IST 2019
C/TAXAP/5/2019 ORDER deposit and the First Appellate Authority to pass order to treat the said refund as pre-deposit. Under the circumstances, there is substance in the submissions of the learned advocate for the assessee. Hence, it is ordered that if the assessee makes an application to revive his First Appeals before the First Appellate Authority, the First Appellate Authority shall revive the First Appeals and hear and decide the First Appeals on merits, treating the amount around Rs.20,00,000/- of the assessee as pre-deposit. Further, till the First Appeals are heard, decided and disposed of finally, there shall be no coercive recovery of tax demand.
5.1 With the above, the present Tax Appeals are disposed of. Since, the main matters are disposed of, the connected civil applications also stand disposed of accordingly.
(J. B. PARDIWALA, J) (A. C. RAO, J) Dolly Page 6 of 6 Downloaded on : Sun Oct 20 01:35:25 IST 2019