TMI Blog2013 (11) TMI 1531X X X X Extracts X X X X X X X X Extracts X X X X ..... his Court in the case of Futura Ceramics Pvt. Ltd. (2012 (12) TMI 955 - GUJARAT HIGH COURT) and a similar reassessment order which was passed on the basis of the show cause notice issued by the Excise Department has been set aside - Decided in favour of assessee. - Special Civil Application No. 8110 of 2013 - - - Dated:- 13-11-2013 - M.R. Shah and R.P. Dholaria, JJ. Shri Devan Parikh with Nirav P. Shah, Advocates, for the Petitioner. Shri Jaimin Gandhi, AGP, for the Respondent. JUDGMENT By way of this petition under Article 226 of the Constitution of India, petitioner has prayed for an appropriate writ, direction and order quashing and setting aside the show cause notice dated 14-3-2012 [Annexure C to the petition] as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Excise Department, adjudicating authority has intended to enhance the sales and also intended to reassess under Section 35(1) of the VAT Act. It was also submitted that except the show cause notice issued by the Central Excise Department, there is no material to show that the petitioner had suppressed the sales and has evaded the tax liability. That solely on the basis of the show cause notice issued by the Central Excise Department, the AO came to the conclusion that there was a sale of ₹ 17,45,46,653/- and accordingly at the rate of 4%, the tax liability would be ₹ 67,13,333/- against which the credit of ₹ 43,54,053/- is adjusted. The petitioner is liable to pay the VAT of ₹ 23,59,280/- and giving the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of this Court in the case of Futura Ceramics Pvt. Ltd. v. State of Gujarat rendered in Special Civil Application No. 6500/2012 and relying upon the said decision, it is submitted that similar reassessment order passed by the AO solely on the basis of the show cause notice issued by the Excise Department has been set aside by this Court. Therefore, it is requested to quash and set aside the impugned order passed by the AO. 4. Shri Jaimin Gandhi, learned AGP appearing on behalf of the respondent is not in a position to dispute the above. He is also not in a position to dispute that similar reassessment order has been set aside by this Court in the case of Futura Ceramics Pvt. Ltd. (supra). However, Shri Gandhi, learned AGP appearing on b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raid carried out by the Excise duty and the material collected during such proceedings culminating into issuance of a show cause notice for recovery of unpaid excise duty and penalty in a given case sufficient to re-open previously closed assessment. In this case, however, we are not called upon to judge this issue and would therefore not give any definite opinion. The question, however, is whether on a mere show cause issued by the Excise Department, the Sales tax Department can make additions for the purpose of collecting tax under the Gujarat Value Added Tax Act without any further inquiry. If the Assistant Commissioner of Commercial Tax has utilized the material collected by the Excise Department; including the statements of the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rfering at this stage in a writ petition. 6. In view of the above decision of Division Bench of this Court, the impugned reassessment order deserves to be quashed and set aside. However liberty can be reserved in favour of the department to pass an order afresh in accordance with law and on merits after giving an opportunity to the petitioner and if permissible under the law now. 6.1 In view of the above and for the reasons stated above, petition succeeds. Impugned order passed by the Commercial Tax Officer - (4), Mehsana [Annexure-E to the petition] dated 30-3-2013 is hereby quashed and set aside. However, it is observed that the same shall not affect the proceedings under the Central Excise Act for which the show cause notice has b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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