TMI Blog2018 (1) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... d on the basis of the sales shown in the revised returns. Having regard to the fact that there is not even a whisper of an allegation against the appellant insofar as the commission of fraud by filing revised return is concerned, at least for the purpose of waiver of pre-deposit the appellant ought to have been given the benefit of doubt and permitted to prosecute the appeal without saddling it with the onerous liability of making pre-deposit of amounts beyond its capacity. Considering the backdrop of the case, this court is of the view that the Tribunal was not justified in not granting complete waiver in payment of pre-deposit to the appellant. Appeal allowed. - Tax Appeal No. 953 of 2017 With Tax Appeal No. 954 of 2017 - - - Dated:- 19-12-2017 - MS. HARSHA DEVANI, J. For The Appellant : Uchit N Sheth, Advocate For The Opponent : Mr Chintan Dave, Assistant Government Pleader ORAL JUDGMENT ( PER : HONOURABLE MS.JUSTICE HARSHA DEVANI) 1. Both these appeals under section 78 of the Gujarat Value Added Tax Act, 2003 (hereinafter referred to as the GVAT Act ) challenge the common order dated 25.9.2017 passed by the Gujarat Value Added Tax Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the years 2011-12 and 2012-13 and made claims for refund. It is the case of the appellant that on verification, it was noticed that the revised returns had the signature of Mr. Ritesh Vimawala who had already retired and, therefore, the appellant was not liable for such returns filed by the retired partner. It was also submitted that the appellant had not done any business with any dealers as admitted in the revised return. 3.1 Later on, the concerned officer visited the premises of the appellant on 29.12.2012, and on his request, the proprietor of the appellant accompanied the officer for finding out the retired partner Mr. Ritesh Vimawala at his residence at Ahmedabad. However, it was learnt that he had already sold his residence and was staying elsewhere. Thereafter, ultimately, the books of accounts were seized and the residence of the proprietor was attached. 3.2 The Assistant Commissioner of Commercial Tax thereafter filed a police complaint against unknown persons for the attempt made to defraud the Government revenue. Subsequently, after due verification, an application was filed for incorporating the names of the retired partner and his accomplices for the fraud com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted in the revised return by the retired partner ought not to have been taken into consideration for making assessment against the appellant. It was submitted that despite the fact that fantastic dues in the assessment of the appellant have been made by relying upon the fraudulent returns made by Mr. Ritesh Vimawala, the first appellate authority has directed the appellant to deposit 25% of the demand and the Tribunal has also directed the appellant to pay amount of ₹ 10,00,000/- and ₹ 5,00,000/- respectively. It was submitted that the appellant was earlier doing job work on small scale and, therefore, the Tribunal ought to have granted complete waiver of the pre-deposit having regard to the facts of the present case and the financial condition of the appellant. It was submitted that in any case, the case of the respondent is that the sales in respect of which the demand has been raised are in the nature of billing activities and hence, in the absence of any actual sales or purchases, the question of any tax liability would not arise. 5. Vehemently opposing the appeals, Mr. Chintan Dave, learned Assistant Government Pleader submitted that despite the fact that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The partners of the firm were (i) Shri Ritesh Suryakantbhai Vimawala and (ii) Shri Ishwarsingh Pitharam Chaudhary (the proprietor of the appellant). On 5.12.2008, Shri Ritesh Vimawala retired from the partnership and the name of the business was changed to Shilp Corporation. From the date this business came into existence till date, the proprietor thereof has been regularly paying tax after filing necessary returns. The proprietor of Shilp Corporation, has for the year 2011-12, filed an annual tax statement 205 online showing sales of ₹ 14,85,018/- and purchases of ₹ 8,38,684/- on 27.6.2012 and has paid tax of ₹ 27140/-. Thereafter on 29.8.2012 some unknown person had filed a revised annual statement at the office of the Commercial Tax Officer in the name of Shilp Corporation for the year 2011-12 showing sales of ₹ 25,41,49,821/- and purchases of ₹ 25,60,83,890/- and claimed refund of ₹ 1,64,114/- and had informed that there being a mistake in the statement filed earlier, this statement was being filed. But since the statement appeared to be suspicious, on 29.12.2012 spot inspection came to be carried out at the business premises of Shilp Corpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rging from the record, prima facie, there is nothing to indicate any complicity on the part of the appellant in filing the manual revised return with a view to defraud the Government. Even in the charge-sheet filed after conclusion of the investigation, there is no allegation whatsoever against the appellant and on the contrary, the proprietor and his son are shown as witnesses. In this background, when the additions have been made on the basis of such fraudulent revised return showing huge sales while the regular returns filed by the appellant were of sales of much less volume, it cannot be gainsaid that if the appellant is not involved in the fraud, it is by and large a dealer working on a small scale and having an annual turnover of rupees ten to twenty lakh and consequently, would not be in a position to pay even a fraction of the tax, penalty and interest, as assessed on the basis of the sales shown in the revised returns. The assessing authority has, in all, assessed the tax and interest for the year 2011-12 at ₹ 7,25,49,977/- and for the year 2012-13 at ₹ 2,96,82,711/-. The first appellate authority has directed payment of 25% of such amount by way of pre-deposit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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