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2016 (3) TMI 386 - GUJARAT HIGH COURT

2016 (3) TMI 386 - GUJARAT HIGH COURT - TMI - Attachment of bank of account - Recovery of GVAT - section 45 of the Gujarat Value Added Tax Act, 2003 - During the pendency of the reassessment proceedings, the respondent / revenue attached the bank accounts of the petitioner. It is the case of the petitioner that he was never informed about such attachment and it was only when the petitioner visited the concerned bank that he came to know about the attachment of his bank accounts. - Held that:- Th .....

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me time, as pointed out by the learned advocate for the petitioner, despite the pendency of the petitionerís appeal and stay application, the second respondent has withdrawn an amount of ₹ 4,07,000/- from the bank account of the petitioner. - in the absence of any exceptional circumstances, there is no warrant for the respondent authority to proceed to initiate coercive recovery in exercise of powers under section 44 of the Act.

The second respondent is hereby restrained from ma .....

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ule. Ms. Maithili Mehta, learned Assistant Government Pleader waives service of notice of rule on behalf of the respondents No.1 and 2, Mr. Parth Bhatt, learned advocate waives service of notice of rule on behalf of the respondent No.4 and Mr. Dharmesh Shah, learned advocate waives service of notice of rule on behalf of the respondent No.6. Respondents No. 3 and 5, though served, have not entered appearance. 2. This petition under Articles 226 and 227 of the Constitution of India is directed aga .....

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y stated, the facts of the case are that M/s Viksun Steel Co., a proprietary concern of Mr. Vivek Kedia (hereinafter referred to as "the petitioner"), was assessed for the period 2009-10 and 2010-11 and had paid the demand raised in terms of the assessment orders for the relevant assessment years. Subsequently, the petitioner was served with notices in Forms 302, 401 and 309 for the year 2009-10 as well as for 2010-11 on 1.9.2015 for reassessment in respect of the said years. During th .....

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despite the fact that the reassessment order had been passed and the assessment proceedings were no longer pending, the respondent continued the attachment of the petitioner s bank accounts. The petitioner thereafter, preferred appeals before the Deputy Commissioner of Commercial Tax (Appeals-2), Ahmedabad on 18.1.2016 together with a stay application. Despite the pendency of the stay application, the respondent authorities started taking coercive action of debiting the petitioner s account to t .....

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ned authority together with a stay application, the respondents ought to have stayed their hands till a decision was taken on the stay application and ought not to have made any coercive recovery. In support of his submission, the learned advocate placed reliance upon an unreported decision of this court in the case of Automark Industries (I) Limited v. State of Gujarat rendered on 17.10.2015 in Special Civil Application No.13641 of 2015, wherein the court had observed thus:- "13. While it .....

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nd the fact that the petitioner has preferred appeals before the first appellate authority and that the stay applications are pending. That if the stay applications are allowed or partly allowed, the petitioner would be required to deposit only a part of the demand covered under the notice or may be even granted complete unconditional stay. Under the circumstances, it is expected of the fourth respondent to stay his hands till the stay application of the petitioner is decided, unless the stay ap .....

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ght to have waited till the outcome of the stay application before resorting to coercive measures. 5. On the other hand, Ms. Maithili Mehta, learned Assistant Government Pleader placed reliance upon the provisions of section 45 of the GVAT Act which empowers the Commissioner to attach provisionally any property belonging to the dealer in such manner as may be prescribed, if he is of the opinion that for the purpose of protecting the interest of the revenue, it is necessary to do so. It was submi .....

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learned Assistant Government Pleader, under instructions, of Mr. N. M. Bhavsar, Commercial Tax Officer-IV, Unit-21 submitted that in the light of the fact that the reassessment order had been passed the provisional attachment would no longer remain in force and, therefore, the concerned officer shall ensure that the attachment of the bank accounts of the petitioner shall be forthwith lifted. 6. In the light of the statement made by the learned Assistant Government Pleader, the relief prayed for .....

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