TMI Blog2014 (5) TMI 1097X X X X Extracts X X X X X X X X Extracts X X X X ..... d no jurisdiction in the matter. Once we have held that the authority had the jurisdiction to issue notice and proceed in the matter, the basis on which the writ of prohibition is sought by the petitioner disappears. It is not a case where the petitioner was being put to unnecessary harassment at the hands of the authority nor it is a case where a writ of prohibition should be issued because the authority had no jurisdiction to proceed in the matter. The petitioner claim that even section 22(3)(b) of the Act did not prohibit the petitioner from issuing a cash memo without the names of the purchaser is a question of appreciation which can easily be dealt with by the authority. Therefore, this court is not inclined to issue a writ of prohibition and it would be open to the petitioner to file a reply to the notices issued by the authority under section 54 of the Act and satisfy the authority that no case of penalty is made out in the light of the provisions of the Act. - Decided against the petitioner - Writ Tax No. 2171 of 2009 - - - Dated:- 22-5-2014 - Tarun Agarwala and Bachchoo Lal, JJ. For the Petitioner : Bharat Ji Agrawal, Senior Counsel assisted by Parv Agarwal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Deputy Commissioner opining that in the light of the stand of the petitioner and the provision of the Act and the Rules famed therein, the provisions of section 54(5) of the U. P. VAT Act relating to penalty did not arise. Inspite of this report being submitted, the Deputy Commissioner (Assessment), respondent No. 2 issued notices dated 30 th October, 2009 under section 54(1)(22) of the Act directing the petitioner to show cause as to why penalty should not be imposed for contravening the provisions of the Act and Rules made thereunder. The ground indicated in the notice is, that since a very high percentage of sales was shown through cash memos ranging from ₹ 50 lacs to Rs. one crore, the sale, being more than ₹ 5 lacs, there is a presumption that the sale was made to a dealer and consequently there was an avoidance of tax under the U. P. VAT Act. Further, since the names and address of the purchasing dealer was not indicated in the cash memos, there was a direct contravention of rule 22(3)(b) of the Act. The petitioners, being aggrieved by the issuance of these notices, has filed the present writ petition praying for a writ of prohibition prohibiting the De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rescribed in this behalf; or (ii) purchaser of goods demands a cash memo or bill; or (iii) any other law prescribes for issue of a bill or cash memo in respect of sale of any goods; or (iv) selling dealer as a practice issues a bill or cash memo in respect of sales made by him, issue to the purchaser a cash memo or bill in the prescribed manner containing such particulars as may be prescribed. Rule 44(2). Sale invoice, to be issued under clause (a) of sub-section (3) of section 22 in respect of sale of any non-vat goods, shall contain name and complete address of the selling dealer, name and address of branch or depot from where goods are sold, Taxpayer Identification Number of selling dealer, sale invoice book number, sale invoice serial No., date of issue, name and address of the purchaser, Taxpayer Identification Number of purchaser, if any, description of goods, quantity or measure of goods, value of goods, other charges, if any, amount of discount, if any, rate of tax, amount of tax charged, total amount of sale invoice, such other details as the dealer consider necessary, if any, and signature of person issuing sale invoice: Provided that where sales are m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had no jurisdiction or there was lack of jurisdiction, a writ of prohibition could be issued. Similarly in the case of Siemens Ltd. v. State of Maharashtra [2007] 207 ELT 168 (SC) the Supreme Court held that the writ petition was maintainable against issuance of a show-cause notice where it was found that notice so issued was with a pre-mediated mind, the Supreme Court held that the statutory authority having already formed its opinion, a writ could be issued restraining the said authority from proceeding in the matter. In the light of the aforesaid decisions, Sri Bharat Ji Agrawal, the learned Senior Counsel submitted that a writ of prohibition is more of a preventive nature than as a corrective remedy and if it is established from the facts that the authority had no right to adjudicate upon the issue in question and had no jurisdiction to proceed in the matter, in such an eventuality a writ of prohibition could be issued and the impugned notices could be quashed by issuance of a writ of certiorari. On the other hand, Sri Tripathi the Special Counsel for the State submitted that the authority had the jurisdiction to issue a notice and proceed under section 54 of the Act sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct in contravention of fundamental rights. The principles, which govern the exercise of such power, must be strictly observed. A writ of prohibition must be issued only in rarest of rare cases. Judicial discipline of the highest order has to be exercised whilst issuing such writs. . . . In the instant case, the court finds that the authority, namely, the Deputy Commissioner (Assessment) had the authority to issue a notice under section 54 of the Act. The notice so issued was for the alleged violation of the provision of section 22(3)(b) of the Act. Whether or not the petitioner has violated the provision is a question of fact which can be easily explained by the petitioner before the authority concerned. Once the court finds that the authority had the jurisdiction to issue a notice, the basis on which the writ of prohibition is sought for by the petitioner disappears. The prayer for the issue of a writ of prohibition restraining the authorities from proceeding in the matter is essentially based on the constitutional challenge that the authority had no jurisdiction in the matter. Once we have held that the authority had the jurisdiction to issue notice and proceed in the matter, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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