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2014 (4) TMI 494 - HC - VAT and Sales TaxWhether tribunal erred despite the fact that the principal order under challenge was a notice u/s 44 and not the assessment order – Jurisdiction of Tribunal – Notice for recovery u/s 44 of Gujarat VAT Act – Opportunity of hearing - Held that:- It is undisputed position that before issuing recovery notice dated 25.5.2009 purportedly in exercise of powers u/s 44, no assessment, adjudication or final order quantifying the liability of the assessee was passed by AC - Thus notice for recovery dated 25.5.2009 was a unilateral ex-parte action on his part without any hearing or opportunity of hearing given to the assessee - Section 44 is only a mode of recovery and not the power of authority to pass any order deciding the liability of an assessee for payment of tax or any other monies due to the Government under the VAT Act - Such recovery therefore, necessarily shall have to be provided by such order as may be passed by the competent authority in terms of provisions of VAT Act - Only once the demand is quantified the question of recovering either through the special mode as provided in section 44 or through any other mode under the Act would arise. When admittedly no order of assessment or any other order of quantification of the assessee’s liability was passed, straightway ordering recovery without any opportunity of hearing to the assessee was wholly not permissible - Tribunal’s final conclusion that notice of recovery and the appellate order confirming such notice must be quashed, was perfectly in order - However, while doing so the tribunal could not have gone into the validity of merits and de-merits of rival stands - Such a stage had not yet arisen - Tribunal committed an error in striking down the Government demand holding that the assessee was entitled to retain all export benefits without curtailment of VAT incentive limit - This is not to suggest that on merits this Court disagrees with the view of the tribunal, This is only to suggest that the tribunal could have refrained from entering into such arena when the stage of doing so had not yet arrived - To this limited extent, thus, appeal of the Revenue would be allowed – Decided partly in favour of Revenue.
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