TMI Blog2015 (8) TMI 952X X X X Extracts X X X X X X X X Extracts X X X X ..... dealer to deposit of pre-deposit as directed by first appellate authority – While passing impugned order tribunal did considered communication / reply submitted by dealer – In view of reasons, impugned order does not require any interference – Decided against Assesse/Dealer. - Special Civil Application No. 16901 of 2014, Special Civil Application No. 6182 of 2015 - - - Dated:- 10-4-2015 - M. R. Shah And S. H. Vora, JJ. For the Petitioner : Mr RJ Oza, Adv. For the Respondent : Mr Chintan Dave, AGP ORDER ( Per Honourable Mr. Justice M. R. Shah ) 1.00. The learned advocate appearing on behalf of the petitioner does not press the Draft Amendment submitted in Special Civil Application No.16901 of 2014. 1.01. As common question of law and facts arise in both these petitions and as such with respect to same dealer, and as such arising out of the impugned common order passed by the Gujarat Value Added Tax Tribunal (hereinafter referred to as the learned tribunal for short), both these petitions are heard, decided and disposed of by this common order. 2.00. By way of this petitions under Article 226 of the Constitution of India, common petitioner herein - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #8377; 49,121/- with respect to demand under CST Act as pre-deposit. 3.05. It appears that even the order with respect to pre-deposit passed by the first appellate authority was tried to be served upon the petitioner - dealer, however, the authority failed to serve the order with respect to pre-deposit upon the petitioner - dealer (the reason for which shall be discussed hereinafter) and ultimately served through the A.O. on 27/5/2014. 3.06. That despite the service of the order of pre-deposit, the petitioner - dealer failed to deposit the amount of pre-deposit and the petitioner - dealer submitted application dated 31/5/2014 requesting to reconsider the order of pre-deposit. 3.07. That by order dated 5/6/2014, the first appellate authority dismissed the appeals preferred by the petitioner - dealer on account of non-deposit of amount of pre-deposit, as directed by the earlier vide order dated 17/4/2014. 3.08. Feeling aggrieved and dissatisfied with the order passed by the first appellate authority dismissing the appeals, the petitioner - dealer preferred appeals before the learned tribunal being Second Appeal Nos.716 717 of 2014. 3.09. That after considering the su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... direct the authority to give certified copies of the file which were seized during the search operation. It is submitted that in any case when the first appellate authority failed to consider the detailed reply filed by the petitioner - dealer on 15/4/2014 while passing the order of pre-deposit and when the first appellate authority dismissed the respective appeals on the ground of non-compliance of the order of pre-deposit which was passed without considering the detailed reply submitted by the petitioner on 15/4/2014, the learned tribunal ought not to have passed the impugned order of pre-deposit directing the petitioner to deposit a huge amount of ₹ 23,51,220/- under the VAT Act and ₹ 49,121/- under the Sales Tax Act. 4.03. Mr.R.J. Oza, learned Senior Advocate appearing on behalf of the petitioner has further submitted that now and subsequent to filing of both these petitions the learned Metropolitan Magistrate has passed an order directing the department to provide copies of the documents which were seized during the search and which are in possession of the department. It is submitted that even the financial condition of the petitioner is also not sound and ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lafide intention on the part of the petitioner dealer. It is submitted that at no point of time, the petitioner dealer had pleaded any financial crunch and/or hardship. It is submitted that even in the present petitions also, the petitioner dealer has not pleaded any financial hardship. It is submitted that therefore, the impugned order passed by the learned tribunal of pre-deposit, does not warrant any interference of this court under Article 226 of the Constitution of India. By making above submissions it is requested to dismiss the present petitions. 6.00. Heard the learned advocates appearing on behalf of the respective parties at length. 6.01. At the outset, it is required to be noted that there was a search of the premises of the petitioner dealer during the period from 24/1/2012 to 1/2/2012. The statement of petitioner - dealer was recorded with respect to seizure of the books of account etc by the Department. That thereafter, assessment proceedings came to be initiated by the A.O. It appears that copies of the documents seized were given to the petitioner - dealer, however, the petitioner - dealer with a malafide intention raised dispute with respect to number of f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14 and [12] 9/4/2014 6.05. Despite the aforesaid adjournments and opportunities given to the petitioner - dealer, the original appellant - petitioner herein - dealer failed to produce any document and only thereafter, the first appellate authority passed order dated 17/4/2014 directing the appellant - petitioner herein - dealer to deposit ₹ 23,51,220/- and ₹ 49,121/- as pre-deposit. 6.06. At the outset, it is required to be noted that the order of pre-deposit was sought to be served upon the petitioner - dealer by R.P. AD. on 19/4/2014. From the order passed by the first appellate authority dated 5/6/2014, it appears that the petitioner - dealer appeared before the first appellate authority on 25/4/2014 and was asked as to whether he has been served with the order of pre-deposit or not and to that he has stated that he has not received the order of pre-deposit. That he was asked to accept the copy of the order of pre-deposit, however, he refused to accept the copy of the order of pre-deposit in person on 25/4/2014. 6.07. That thereafter R.P. AD. letter / cover came to be returned without serving he same upon the petitioner dealer. From the endorsement on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that even after the order passed by the learned Metropolitan Magistrate below Ex.3 in the application under section 91 of the Code of Criminal Procedure the concerned officer had called upon the petitioner - dealer to obtain copies, vide communication dated 5/2/2014, by noting that earlier in the year 2012, copies of some of the documents seized were already given to the petitioner - dealer. However it appears that once again by raising the very technical objection, the petitioner - dealer has refused to accept the copies vide communication dated 21/2/2015. 6.11. The aforesaid conduct on the part of the petitioner - dealer dis-entitles him the discretionary relief under Article 226 of the Constitution of India. 6.12. Even otherwise on merits also it cannot be said that the learned tribunal has committed any error in directing the appellant - petitioner herein - dealer to deposit the amount of pre-deposit as directed by the first appellate authority i.e. ₹ 23,51,220/- and ₹ 49,121/-. 6.13. It is required to be noted that even while passing the impugned order the learned tribunal did considered the communication / reply submitted by the petitioner - dealer dated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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