TMI Blog2016 (12) TMI 467X X X X Extracts X X X X X X X X Extracts X X X X ..... se notice may not entertained and the petitioners may be relegated to reply to the show cause notice and participate in the revisional proceedings. It will always be open for the petitioners to make submission before the Revisional Authority and in reply to the show cause notice that there is no factual foundation to take order dated 07.07.2016 under suo motu revision and / or grounds stated in the show cause notice are not tenable and the revisional authority bound to consider the same in accordance with law and on merits. Therefore, we are of the opinion that no exceptional case is made out to interefere with the present petition under Article 226 of the Constitution of India against the show cause notice - present petition not entertaina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nter alia granting refund and sent it to the higher authority. Thus, the order was sent for preaudit. The same came to be challenged by the petitioners by way of Special Civil Application No. 4984 of 2016 challenging the action of preaudit . By the judgment and order dated 08.06.2016 the Division Bench of this Court quashed and process of preaudit and directed the First Appellate Authority to pass order in furtherance of the draft order. That by order dated 07.07.2016, Joint Commercial Tax Commissioner passed an order declaring that the petitioners are entitled to refund of ₹ 75,73,923/, However, thereafter by impugned notice dated 23.08.2016 the Revisional Authority learned Special Commercial Tax Commissioner has taken the order o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of the Hon'ble Supreme Court in the case of South India Tanners Dealers Association vs. Deputy Commissioner of Commercial Taxes And ors reported in (2009) 23 VST 8(SC) as well as another decision of the Hon'ble Supreme Court in the case of Commissioner of Income Tax and Ors vs. Chhabil Das Agrawal reported in (2014) 1 SCC 603. 5.0. Shri Mihir Joshi, learned Senior Advocate for the petitioners has submitted that as such the order dated 07.07.2016 is taken under suo motu revision only with a view to see that the petitioners are not paid the refund. It is submitted that initially the petitioners were denied the refund as the First Appellate Authority did not pass the final order though draft order was prepared and sent s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e particularly, Section 59 of the Gujarat Sales Tax Act r/w relevant provisions of the Gujarat Value Added Tax Act, it cannot be said that respondent no.2 who has issued the show cause notice and has taken the order dated 07.07.2016 under suo motu revision has no jurisdiction at all. Therefore, it cannot be said that there is total lack of jurisdiction and / or respondent no.2 has no jurisdiction and / or authority at all to take the order dated 07.07.2016 under suo motu revision. The petitioners have yet to appear before the Revisional Authority and have yet to respond to the show cause notice and straightway against the show cause notice the present petition has been preferred under Article 226 of the Constitution of India. 6.1. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. 16.In the instant case, the Act provides complete machinery for the assessment/reassessment of tax, imposition of penalty and for obtaining relief in respect of any improper orders passed by the Revenue Authorities, and the assessee could not be permitted to abandon that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution when he had adequate remedy open to him by an appeal to the Commissioner of Income Tax (Appeals). The remedy under the statute, however, must be effective and not a mere formality with no substantial relie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e are of the opinion that present petition which is at the stage of show cause notice amy not entertained and the petitioners may be relegated to reply to the show cause notice and participate in the revisional proceedings. It will always be oepn for the petitioners to make submission before the Revisional Authority and in reply to the show cause notice that there is no factual foundation to take order dated 07.07.2016 under suo motu revision and / or grounds stated in the show cause notice are not tenabel and the revisional authority bound to consider the same in accordance with law and on merits. Therefore, we are of the opinion that no exceptional case is made out to interefere with the present petition under Article 226 of the Constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
