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TMI Blog2015 (8) TMI 952X X X X Extracts X X X X X X X X Extracts X X X X ..... assed by the learned tribunal in Second Appeal Nos.716 & 717 of 2014, by which the learned tribunal has directed the petitioner - dealer to deposit Rs. 23,51,220/- and Rs. 49,121/- as pre-deposit as directed by the first appellate authority. 3.00. Facts leading to both these petitions in nutshell are as under :- 3.01. That a search operation was conducted by the officers of the respondent department at the premises of the petitioner from 24/1/2012 to 1/2/2012 and statement of the petitioner came was recorded and during the search operations, the officers of the respondent department seized certain files and documents. 3.02. That a show cause notice came to be issued to the petitioner on 4/7/2012 calling upon the petitioner to produce certain documents, however, the petitioner did not produce the same. 3.03. That thereafter the adjudicating authority / A.O. passed ex-parte assessment order dated 24/6/2013 for the financial year 2008-2009 and made demand of tax of Rs. 26,54,342/- along with interest of Rs. 21,89,832/- and penalty of Rs. 45,60,704/-, in all Rs. 94,04,878/- under the Gujarat Value Added Tax Act and also made a demand of tax of Rs. 98,242/- and penalty of Rs. 98,242 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rst appellate authority - Dy. Commissioner of pre-deposit and with respect to pre-deposit of the amount to be deposited on or before 24/11/2014, failing which the appeals shall dismissed. 3.10. That the learned tribunal has also passed an order that on compliance of the order and production of Chalan, hearing of the appeals stand adjourned to 24/11/2014. Instead of complying with the impugned order of pre-deposit passed by the learned tribunal, the petitioner - dealer has preferred both these petitions challenging the order of pre-deposit passed by the learned tribunal on 20/11/2014. 4.00. Mr.R.J. Oza, learned Senior Advocate appearing for Mr.A.R. Kapadia, learned advocate appearing on behalf of the petitioner has appeared on behalf of the petitioner. He has vehemently submitted that the learned tribunal has materially erred in directing the petitioner - dealer to deposit the amount of pre-deposit as directed by the first appellate authority more particularly Rs. 23,51,220/- and Rs. 49,121/-. 4.01. Mr.R.J. Oza, learned Senior Advocate appearing on behalf of the petitioner has further submitted that the learned tribunal has materially erred in not appreciating the facts that whil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e impugned order passed by the learned tribunal of pre-deposit. 5.00. Both these petitions are opposed by Mr.Chintan Dave, learned Assistant Government Pleader appearing on behalf of the respondents - State. It is submitted that after adorning the appeals on number of occasions and giving ample opportunities to the petitioner dealer to produce necessary documents, when the learned first appellate authority has passed an order to deposit a sum of Rs. 23,51,220/- and Rs. 49,121/- as pre-deposit and despite the same when the petitioner dealer failed to deposit the amount of pre-deposit as directed, the learned first appellate authority has dismissed the appeals on the ground of non-deposit of the amount of pre-deposit and even after considering the reply submitted by the petitioner dealer on 15/4/2014 and the application made by the petitioner dealer dated 31/5/2014, the learned tribunal has rightly passed the impugned order directing the original appellant - petitioner herein - dealer to deposit the amount of pre-deposit as directed by the first appellate authority. It is submitted that though copies of the relevant documents were already supplied to the petitioner dealer, on one gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and copy of the Panchnama as well as other documents seized. That thereafter though number of opportunities were given, the petitioner - dealer failed to avail the same and therefore, the A.O. passed the assessment order raising demand of Rs. 23,51,220/- and Rs. 49,121/- vide order dated 24/6/2013. 6.02. The petitioner assessee preferred Special Civil Application No. 13190 of 2013 before this Court and prayed for the following main reliefs in para 26 : "(B). YOUR LORDSHIPS may kindly be pleased to issue a writ of mandamus or in the nature of mandamus or any other appropriate Writ, order or direction and thereby Quash and Set aside the Assessment orders dated 24-06-2013 as well as Demand notice dated 24- 06-2013 as per Annexure A (colly)? (C). YOUR LORDSHIPS may kindly be pleased to issue a writ of mandamus or in the nature of mandamus or any other appropriate writ, order or direction or any other appropriate writ, order or direction, issuing directions to the respondents to provide the certified copies of all the documents of remaining 26 files containing purchase and sale bills, LR, Weigh Slips, Transport receipts, Forms 402, 403 etc. for the period from the year 2008 to 2012 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the order upon the petitioner dealer and only thereafter the order of pre-deposit could be served upon the petitioner - dealer on 27/5/2014. 6.08. That thereafter despite the service of the order of pre-deposit, the petitioner dealer failed to deposit the amount of pre-deposit as per order dated 17/4/2014, and therefore, the appellate authority dismissed the appeals on the ground of non-deposit of the amount of pre-deposit. 6.09. That against the order passed by the first appellate authority dismissing the appeals on account of non-deposit of the pre-deposit as per order dated 17/4/2014, the petitioner - dealer preferred appeals before the learned tribunal being Second Appeal Nos.716 & 717 of 2014. It appears that the only and main contention of behalf of the petitioner - dealer was, that while passing the order of pre-deposit on 17/4/2014, application / reply submitted by the petitioner - dealer dated 15/4/2014 has not been considered by the first appellate authority. However, it is required to be noted that while passing the impugned order, the learned tribunal has considered the communication dated 15/4/2014. 6.10. From the aforesaid facts and circumstances of the case, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be noted that at no point of time, either before the first appellate authority or before the learned tribunal or even before this Court in the present petitions, the petitioner - dealer has pleaded any financial hardship. Under the circumstances, as such no error has been committed by the learned tribunal in passing the impugned order of pre-deposit. 6.15. At this stage, it is required to be noted that even after the search and seizure, Commercial Tax Officer has lodged FIR being CR No.I-3192 of 2012 with Madhavpura Police Station, Ahmedabad against the petitioner - dealer for the offence punishable under section 75(1) of the Sales Tax Act and the petitioner has been charge-sheeted by the investigating officer for the offences punishable under section 85(1)(J) of the Gujarat Value Added Tax Act and the same has been registered as Criminal Case No.763 of 2012 and the same is pending in the court of learned Metropolitan Magistrate, Court No.2, Ahmedabad. 7.00. In view of the above and for the reasons stated above, the impugned order passed by the learned tribunal of pre-deposit, does not require any interference of this Court in exercise of powers under Article 226 of the Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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