TMI Blog2016 (9) TMI 717X X X X Extracts X X X X X X X X Extracts X X X X ..... ated:- 21-4-2016 - Harsha Devani And G. R. Udhwani, JJ. Aditya A Gupta, Advocate, Mr AR Gupta, Advocate for the Petitioner Mr Hardik Vora, Asstt. Govt Pleader for the Respondents JUDGMENT ( Per : Honourable Ms. Justice Harsha Devani ) 1. Rule. Mr. Hardik Vora, learned Assistant Government Pleader waives service of notice of rule on behalf of the respondents. 2. By this petition under Article 226 of the Constitution of India, the petitioner seeks the following substantive reliefs: 18. The petitioner most respectfully prays as under: [A] YOUR LORDSHIPS BE PLEASED to issue writ of certiorari or any other appropriate writ, direction or order in the nature of certiorari to quash and set aside the order dated 10.02.2016 at Annexure G , directing payment of entire tax and 150% penalty for release of the goods and the vehicle being Truck No.DL-1-LV-9684 and order dated 21.12.2015 passed by the officer-incharge, check post, Shamlaji, seizing the goods and detaining the vehicle being Truck No.DL-1-LV-9684, at Annexure A , under the Gujarat Value Added Tax Act, 2003 as being illegal, without jurisdiction and without the authority of law; [B] YOUR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has filed the present petition. 4. Mr. Aditya Gupta, learned advocate for the petitioner assailed the impugned order by submitting that under the provisions of sub-section (4) of section 68 of the Gujarat Value Added Tax Act, 2003 (hereinafter referred to as the GVAT Act ), the officer-in-charge of the check post or barrier is empowered to seize the goods and detain the vehicle. Under sub-section (5) of section 68 of the Act, the officer-in-charge of the check post or a barrier may, after giving the owner, driver or person-in-charge of goods, a reasonable opportunity of being heard and after holding such further inquiry, as he deems fit, impose on him penalty, in addition to tax payable under the Act, not exceeding one and one-half times of the tax for possession of goods so seized and to release the goods or documents so seized under sub-section (4) on payment of tax, interest and penalty or on furnishing such security in such form as may be prescribed. It was submitted that therefore, under sub-sections (4) and (5) of section 68 of the GVAT Act, the officer-in-charge is empowered to seize the goods but not the truck. Moreover, the amount of tax payable is required to be paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a remedy of appeal under section 73 of the GVAT Act and hence, the petitioner is required to be relegated to avail of the alternative remedy of appeal under the provisions of the GVAT Act and that no case has been made out for exercise of powers under Article 226 of the Constitution of India. It was, accordingly, urged that the petition being devoid of merits, deserves to be dismissed. 7. A perusal of the impugned order shows that the Commercial Tax Officer, in the exercise of powers under subsection (5) of section 68 of the GVAT Act, has imposed penalty of 150% and tax of ₹ 3,35,755/-, in all amounting to ₹ 8,48,405/- and has ordered release of the truck and the goods only subject to payment of such amount. Since the impugned order is passed under sub-section (5) of section 68 of the GVAT Act, it may be germane to refer to the provisions of sub-section (4) of section 68 of the GVAT Act, which are also relevant for the present purpose. 8. Though the GVAT Act has been brought into force with effect from 01.04.2006, at the time when it came to be originally enacted sub-section (4) of section 68 empowered the officer-in-charge of the check-post to seize the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver any payment by way of tax payment or interest for release of the vehicle, whereas, by virtue of the impugned order, the release of the vehicle has been made subject to payment of tax and interest which is clearly in excess of the powers conferred on the authorities under the GVAT Act by virtue of sub-section (5) of section 68 of the GVAT Act. 10. In the facts of the present case, the truck in question was detained by the respondent authorities on 21.12.2015 and such detention continues till date despite the fact that there is no power of seizure vested in them under the provisions of the GVAT Act. Evidently, therefore, the petitioner has been subjected to undue prejudice and hardships at the hands of the respondent authorities, inasmuch as, the authorities concerned have detained the truck of the petitioner for a considerable period without any authority of law. Such high handed action on the part of the respondent authorities, which is not backed by any authority of law, needs to be deprecated in the strictest terms. 11. Another glaring aspect of the matter is that the Deputy Commissioner of Commercial Tax, who is a superior officer, has instructed the Assistant Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies itself. No doubt in terms of the circular letter issued by CBDT, the Commissioner or for that matter any other higher authority may have supervisory jurisdiction but it is difficult to conceive that even the merit of the decision shall be discussed and the same shall be rendered at the instance of the higher authority who, as noticed hereinbefore, is a supervisory authority. It is one thing to say that while making the orders of assessment the assessing officer shall be bound by the statutory circulars issued by CBDT but it is another thing to say that the assessing authority exercising quasijudicial function keeping in view the scheme contained in the Act, would lose its independence to pass an independent order of assessment. 55. When a statute provides for different hierarchies providing for forums in relation to passing of an order as also appellate or original order, by no stretch of imagination a higher authority can interfere with the independence which is the basic feature of any statutory scheme involving adjudicatory process. 57. Yet again in Purtabpore Co. Ltd. v. Cane Commr. of Bihar, (1969) 1 SCC 308, this Court held: 11. The power exercisa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C 308, are instructive and apposite. Executive Officers may in exercise of their statutory discretions take into account considerations of public policy and in some context, policy of a Minister or the Government as a whole when it is a relevant factor in weighing the policy but they are not absolved from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for instructions by a superior to bind them. As already stated, we are not recording, for want of adequate material, any positive finding that the impugned order was passed at the behest of or dictated by someone else than its author. Yet we have no hesitation in holding that the impugned order betrays utter non-application of mind to the facts of the case and the relevant law. The manner in which the power under Section 22 has been exercised by the competent authority is suggestive of betrayal of the confidence which the State Government reposed in the Principal Secretary in conferring upon him the exercise of drastic power like removal of President of a Municipality under Section 22 of the Act. To say the least, what has been done is not what is expected to be don ..... X X X X Extracts X X X X X X X X Extracts X X X X
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