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Manoj Babulal Dugar Versus State of Gujarat And 3

2015 (8) TMI 952 - GUJARAT HIGH COURT

Pre-Deposit Amount – Non-Deposit – Petitioner-dealer praying for direction to quash and set aside impugned order of tribunal by which order of Appellate authority directing dealer to deposit sum as pre-deposit was upheld – Despite service of order of pre-deposit, dealer failed to deposit amount of pre-deposit and dealer submitted application requesting to reconsider order of pre-deposit – Application and appeal filed against order of pre-deposit was dismissed – Held that:- Admitted that first ap .....

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lief – Even otherwise on merits also it cannot be said that tribunal committed any error in directing 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 .....

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dded 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 - dealer has prayed for appropriate writ, order and/or direction to quash and set aside the impugned common order dated 7/11/2014 passed by the learned tribunal in Second Appeal Nos.716 & 717 of 2014, by which the learned t .....

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tment 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 ₹ 26,54,342/- along with interest of ₹ 21,89,832/- and penalty of ₹ 45,60,704/-, in all & .....

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id demand for the A.Y. 2008-2009. The petitioner - dealer preferred appeals before the first appellate authority - Dy. Commissioner. The first appellate authority gave ample opportunities and after adjourning the appeals on number of occasions, so as to give opportunities to the petitioner - dealer to produce relevant documents, however, despite the number of opportunities given, the petitioner - dealer failed to produce necessary documents. Therefore, the first appellate authority passed order .....

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e 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 .....

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appellants to comply with the orders passed by the first 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 tribuna .....

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authority more particularly ₹ 23,51,220/- and ₹ 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 while passing the order of pre-deposit on 17/4/2014, the first appellate authority did not consider the detailed reply submitted by the petitioner - dealer on 15/4/2014. 4.02. Mr.R.J. Oza, learned Senior Advocate appearing on behalf of the petit .....

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before the A.O. / adjudicating authority. It is submitted that as such even the petitioner - dealer filed an application under section 91 of the Code of Criminal Procedure before the learned Metropolitan Magistrate, Court No.2 requesting to 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 wh .....

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a, 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 therefore, to direct the petitioner to deposit huge sum of ₹ .....

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dealer to produce necessary documents, when the learned first appellate authority has passed an order to deposit a sum of ₹ 23,51,220/- and ₹ 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 ap .....

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the copies of the documents which were seized during the search. It is submitted that even after the order passed by the learned Metropolitan Magistrate, the Department called upon the petitioner dealer to obtain copies (additional), however, on one or the other the petitioner dealer has refused to get the copies and has continued to raise grievance with respect to non-supply of the documents seized during the search only with a malafide intention. 5.01. Mr. Chintan Dave, learned Assistant Gover .....

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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, .....

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spect to number of files seized, though the particulars of the files seized by the Department were already recorded in the Panchnama which has been signed by the petitioner - dealer. The petitioner - dealer was served with the copy of the statement recorded during the search 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 rai .....

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- 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 lying in the po .....

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t thereafter the first appellate authority adjourned the appeals on the following occasions / dates so as to enable the dealer to produce necessary documents / evidences before determining the amount of pre-deposit :- [1] 16/9/2013; [2] 1/10/2013; [3] 21/10/2013; [4] 27/12/2013; [5] 16/1/2014; [6] 30/1/2014; [7] 19/2/2014; [8] 5/3/2014; [9] 3/4/2014; [10] 5/4/2014; [11] 7/4/2014 and [12] 9/4/2014 6.05. Despite the aforesaid adjournments and opportunities given to the petitioner - dealer, the ori .....

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014, 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 serv .....

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- 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 .....

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ated 15/4/2014. 6.10. From the aforesaid facts and circumstances of the case, it appears that been the communication dated 15/4/2014 is nothing but an afterthought, as prior thereto on number of occasions, as noted hereinafter, the appeals were adjourned and number of opportunities were given to the appellant to produce necessary documentary evidences before even deciding the amount of pre-deposit. However, the petitioner - dealer failed to avail such opportunities. As observed hereinabove, the .....

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e 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 commu .....

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oted that even while passing the impugned order the learned tribunal did considered the communication / reply submitted by the petitioner - dealer dated 15/4/2014 as well as application dated 31/5/2014. It is required to be noted that against the total demand of ₹ 94,04,878/- under the Gujarat Value Added Tax Act and ₹ 1,94,484/- under the Central Sales Tax Act, the petitioner - dealer has been directed to deposit only ₹ 23,51,220/- and ₹ 49,121/-.. 6.14. It is required t .....

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