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SCA/9316/2008 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No.9316 of 2008
===================================================
M/S.
GLOBAL SKY SHOP - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
===================================================
Appearance
:
M/S WADIA GHANDY &CO for
Petitioner(s) : 1,
GOVERNMENT PLEADER for Respondent(s) :
1,
NOTICE SERVED BY DS for Respondent(s) : 1 -
3.
===================================================
CORAM
:
HONOURABLE
MR.JUSTICE D.A.MEHTA
and
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 31/07/2008
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE D.A.MEHTA)
Heard
the learned advocate for the petitioner and the learned Assistant
Government Pleader. Mr.U.R.Bhatt, learned Assistant Government
Pleader, who has appeared in the second session after the matter was
heard at length in the first session, has prayed for time to place
all facts on record.
The
communication dated 28.05.2008 from the banker’s of the
petitioner-assessee refers to A/c. No.0263050000202 with the
Lokhandwala Branch of the bank having been frozen on 27.02.2008 in
terms of the provisions of Section 45(1) of The Gujarat Value Added
Tax Act, 2003 (the Act).
Section
45(1) specifically empowers the Commissioner to attach provisionally
any property belonging to the dealer in the prescribed manner, where
during the pendency of any proceedings of assessment of turn over
escaping assessment, the Commissioner records an opinion that it is
necessary so to do for protecting the interest of government
revenue. Admittedly, in the present case assessment has been framed
on 23.06.2008 and the entire petition is based on the notice of
recovery pursuant to such assessment. In the aforesaid circumstances
it is apparent that the power under Section 45(1) of the Act which
permits provisional attachment is available to be exercised till the
point of time the assessment proceedings are pending, the language
employed by the provision being ?Sduring the pendency of any
proceedings of assessment??. Once the assessment is framed the
power of provisional attachment cannot be exercised by the authority
and hence, the order made under Section 45(1) of the Act on
26.02.2008 cannot be sustained. The same is hereby quashed and set
aside.
Matter
to come up on 07.08.2008. Ad-interim relief granted earlier to
continue till then.
Sd/-
[D.A.
MEHTA, J]
Sd/-
[H.N.DEVANI,
J]
***
Bhavesh*
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