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TAXAP/326/2010 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 326 of 2010
With
TAX
APPEAL No. 327 of 2010
And
CIVIL
APPLICATION No. 35 OF 2010
In
TAX
APPEAL No. 326 of 2010
With
CIVIL
APPLICATION No.36 Of 2010
In
TAX
APPEAL No.327 of 2010
======================================
SHIV
ENTERPRISES
Versus
STATE
OF GUJARAT
======================================
Appearance :
MR
SIRAJ R GORI for Appellant
MS.
MAITHILI MEHTA, AGP for
Respondents
======================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
and
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 04/02/2010
ORAL
COMMON ORDER
(Per
: HONOURABLE MR.JUSTICE K.A.PUJ)
1 The
Appellant M/s Shiv Enterprises, has filed these Tax Appeals,
under Section 78 of the Gujarat Value Added Tax, 2003, proposing to
formulate the following substantial question of law for
determination and consideration of this Court.
1 Whether
on the facts in and circumstances of the case, the impugned order
passed by the Tribunal admitting the Appeal by imposing condition
of deposit of 20% of the total dues on or before 25.03.2009 is
based on cogent reasons and grounds or not?
2. Whether
on the facts and circumstances of the case, the learned Tribunal
has committed an error in not appreciating the stand of the
appellant that the transactions entered into by the appellant
with other dealers who were holding valid registration numbers
issued by the State VAT Authority, were genuine business
transactions?
3. Whether
on the facts and circumstances of the case, the learned Tribunal
has committed an error in not appreciating that the First Appellate
Authority ought to have exercised its discretion by admitting the
Appeal without payment or on the proof of payment of small amount?
4. Whether
on the facts and circumstances of the case, the learned Tribunal
has passed the Order without taking into consideration the most
vital aspect about the stand of the appellant to the effect that
its sale and purchase transactions with the other dealers were
proper and as per the provisions of the law as such transactions
were entered into with the registered dealers, who have been issued
registration numbers by the State Commercial Tax Authority after
duly verifying the genuineness of the application made by the
respective parties.
5. Whether
on the facts and circumstances of the case, the learned Tribunal
has passed the impugned Order without taking into consideration that
the Assessing Authority has committed an error in law in considering
the genuine purchases made by the appellant as an activity of bogus
billing in spite of the fact that the same were supported by
purchase bill, payments made by A/c Payee cheques and such
transactions were recorded in the Books of Accounts?
6. Whether
in the facts and circumstances of the case, the learned Tribunal has
passed the impugned Order without appreciating that Provisional
Assessment Order was passed by the Assessing Authority without
proper show cause notice, hence, the amount arrived at by the
Assessing Authority and interest and penalty sought to be imposed
were also improper?
2 Heard
Mr. Siraj R. Gori, learned Advocate appearing for the appellant and
Ms. Maithili Mehta, learned AGP, appearing for the respondent, on
advance copy being served on the Government Pleader’s Office.
3 The
appellant has filed these two Tax Appeals against the interim
Order passed by the Tribunal, directing the appellant to deposit 20%
of the total dues on or before 25.03.2009, failing which, Appeal
would be treated as dismissed for non-payment as per the direction
of the Tribunal. The Tribunal has also held that on depositing the
amount, stay order against the recovery be issued.
4 Though,
the Tribunal has extended the time limit to deposit the 20% amount
on or before 25.03.2009, the appellant has filed the present Tax
Appeals only on 19.06.2009 and the same were circulated today. By
this time, possibly, for non-compliance of the order passed by the
Tribunal, the Appeals might be treated as dismissed. In any case,
this being the discretionary order and 20% of the amount of tax could
not be said to be unreasonable and, hence, the order directing to
deposit the 20% of the amount cannot be said to be unreasonable or
excessive. No substantial questions of law arise out of the order
passed by the Tribunal for determination and consideration of this
Court.
5 We,
however, show our indulgence only to the extent that if the
appellant deposits the amount of 20% of the total dues, as directed
by the Tribunal on or before 31.03.2010, the Tribunal shall
revive the Appeals, if dismissed by this time and hear the appeal
on merits.
6 Subject
to the aforesaid direction and observations, both these Tax Appeals
are accordingly dismissed.
7 In
view of the aforesaid order passed in the Tax Appeals, both the
Civil Applications do not survive and are disposed off accordingly.
(K.
A. PUJ, J.)
(RAJESH
H.SHUKLA, J.)
pnnair
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