TMI Blog2017 (10) TMI 425X X X X Extracts X X X X X X X X Extracts X X X X ..... itioners. They have given sufficient opportunity to the petitioners and the petitioners have continued to claim that their bankers were not giving details or then burden was upon the respondents to establish that the petitioners were dealers. The grievance made in the present writ petition is misconceived and erroneous - petition dismissed - decided against petitioner. - Writ Petition No. 1531 of 2014 - - - Dated:- 21-9-2017 - B. P. Dharmadhikari And Arun D. Upadhye, JJ. Shri M.G. Bhangde, Senior Advocate with Shri S.N. Tapadia, Advocate for the petitioners Mrs. K.S. Joshi, Additional GP for the respondents JUDGMENT ( Per B. P. Dharmadhikari, J. ) Considering the nature of controversy and developments mentioned in this judgment, we have heard the matter finally by issuing Rule with consent of all and making it returnable forthwith at the stage of admission itself. Accordingly, we have heard the learned Shri M.G. Bhangde, Senior Advocate with Shri S.N. Tapadia for the petitioners and Mrs. K.S. Joshi, learned Additional GP for the respondents. 2. The members of Banaffar family are the petitioners before this Court through their proprietory concerns. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m. Vide application moved on 18.09.2013, they have sought issuance of notice to vendees who gave statement that they have purchased goods from the petitioners and sought opportunity to cross examine them. On the very same date, by moving another application, they have pointed out that their bank did not reply and provide details of unidentified persons/ firms, depositing amount in the firms. 5. Notice issued on 14.03.2014 pointing out that non cooperation of the petitioners will result in completion of assessment proceedings is also assailed on the ground that the petitioners' claim that they are not liable to tax as unregistered dealers, has not been substantiated. 6. When this challenge came before this Court on 24.03.2014, after briefly taking note of contentions, this Court issued notice, returnable on 05.04.2014 and restrained the respondents from passing final orders in respect of assessment till then. On 07.04.2014, the matter was adjourned at the request of the learned AGP and interim orders were continued. The matter was then being listed and adjourned at the request of the respondents. On 04.08.2015, civil application for amendment was allowed. On 02.12.2016, le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt No. 2. Respondent No. 2, therefore, must decide though applications and thereafter only can proceed further. 9. He contends that without deciding it, respondent No. 2 has found it proper to treat the petitioners as unregistered dealers and has served upon them notice for assessment on 14.03.2014. The contention is, without taking decision on pending applications/ requests, such notice could not have been issued. The communication sent in reply by the petitioners, requesting the authorities to take decision on pending applications, is pressed into service by them to urge that despite these repeated requests or orders of this Court, no decision has been taken and harassment of the petitioners continues. 10. Our attention is invited to course of action followed in the case of another industry on 12.02.2014. The Joint Commissioner of Sales Tax, has on 12.02.2014, sent a communication regarding investigation in the case of one M/s. Karma Ispat Limited. It is mentioned therein that Sales Tax Tribunal directed to proceed against other units on same lines. Shri Bhangde, learned Senior Advocate, submits that thus, when a dealer is found to be non genuine, he should not be assessed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ners are not shown to be dealers at all. He claims that after appropriate decision is taken on show cause notice issued on 06.06.2012 to the petitioners, action under Section 23(4) can begin. He, however, argues that the language of notice dated 14.03.2014 shows that the respondents are only making a farce and showing compliance with empty formalities and they have already decided to decide against the petitioners. 14. Section 2(4) of 2002 Act contains inclusive definition of business . It includes any service or any trade, commerce or manufacture. Section 2(8) defines dealer to mean any person who, for the purposes of or consequential to his engagement in or, in connection with or incidental to or in the course of, his business buys or sells, goods in the State whether for commission, remuneration or otherwise. Section 2(27) defines service to mean any service as may be notified by the State Government, from time to time, in the Official Gazette. Section 3 is on incidence and levy of tax and if turnover of sales or purchase in the year exceeds Rs. Five lakh, the liability to pay tax, prima facie, arises. Section 23(4) permits the Commissioner of Sales Tax to give the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ances, exact nature of deal is to be explained by them and burden to substantiate is on them. 18. In application under Section 14, the petitioners state that they have written to their Bank viz., Wardhman Urban Cooperative Bank Limited on 21.06.2012, 26.07.2012 and 20.12.2012 and sought details of deposits in their accounts. The Bank did not provide those details. Hence, Sales Tax Department has been requested on 21.02.2013 to exercise powers available to it under Section 14(b) and (c) of 2002 Act and to summon bank officials and to examine them on oath. 19. These petitioners accept that at the instance of some persons, they have opened bank accounts and permitted it to be used to deposit cheques drawn in their names and to withdraw cash after amount of cheque was received in that account. Adverse circumstance is that they have not disclosed names of these persons. 20. Considering the number of transactions and large amounts received in the accounts, the situation becomes difficult for them. Their contention that they have not maintained accounts or then their bankers are not giving necessary details, cannot be accepted. 21. The petitioners have produced an Income Tax a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim that their bankers were not giving details or then burden was upon the respondents to establish that the petitioners were dealers. 25. In this situation, only to proceed further, notice was issued on 14.03.2014. Though it is on subject of imposing tax, interest under Section 30(3) and penalty under Section 29(3) of 2002 Act, defences available to the petitioners are not eclipsed. But then the learned AGP has pointed out that it is open to the petitioners to establish that they are not dealers. 26. When this Court issued notice on 24.03.2014 and stayed passing of final order of assessment, liberty was given to the respondents to pass suitable orders on pending applications. Those orders have not been passed till date. The Authorities also did not bother to file any reply till 03.08.2017 and the matter dragged on unnecessarily for more than three years to the prejudice of public revenue and in favour of the petitioners. In fact, the respondents ought to have shown their interest and keeping in mind seriousness of the matter, filed reply immediately. We, therefore, direct the respondents to expedite the proceedings in public interest and respondents shall complete the proc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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