TMI Blog2018 (1) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... #8377; 15,72,74,830/- from the account held by the petitioner-Company towards recovery of the demand based on the assessment order dated 18.08.2017 till the hearing of the appeal and stay application of the petitioner - petition allowed. - Special Civil Application No. 22538 of 2017 - - - Dated:- 22-12-2017 - MS. HARSHA DEVANI AND MR. A. S. SUPEHIA, JJ. For The Petitioner : Mr Anand Nainawati, Advocate For The Respondent : Mr Hardik Vora, Assistant Government Pleader ORAL JUDGMENT ( PER : HONOURABLE MR.JUSTICE A.S. SUPEHIA) 1. RULE . Learned Assistant Government Pleader appears and waives service of rule. With the consent of the learned advocates for the respective parties, the petition is taken up for final h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner has erred in reducing their VAT liability to the extent of discount passed-on to its buyers by way of issuing credit notes after raising of sale invoices. The officers were of the opinion that for the period from April 2015 to June 2017, the petitioner has wrongly reduced its tax liability by an amount of ₹ 5,54,03,788/-. On the said tentative liability, the department assumed penal liability of ₹ 8,31,05,682/- being 175% of the tax demand and interest at ₹ 1,12,32,945/-. 4. In response to the objections raised by the officers at the time of spot visit, the petitioner gave a voluntary deposition under section 67 of the Act explaining the transactions followed by them of giving discounts to its buyers. Thereaf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner is lifted; ( ii) The attachment of the petitioner's stock would continue for the time being with the modification that it would be open for the petitioner to deal with such goods, which are presently attached, on the condition that the petitioner at all times shall maintain stock minimum worth ₹ 1,45,54,575/-; ( iii) If the petitioner files appeal against the order of assessment and applies for waiver of pre-deposit, the Commissioner may decide such request unmindful of any of the observations made in this order; (iv) If the petitioner fulfills the condition of pre-deposit on which the Commissioner may permit stay against the rest of the recoveries, the modified condition of attachment of the stock of the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to grant hearing of the appeal and the stay application filed by the petitioner and in that situation, no recovery action was called for by the respondents herein. 9. In support of the said contention, he has placed reliance on the judgement dated 17.10.2015 rendered by the Division Bench of this court in Special Civil Application No.13641 of 2015. Mr.Nainawati has also submitted that in the order dated 22.09.2017 passed in Special Civil Application No.16061 of 2017, this court had lifted attachment of the bank accounts of the petitioner-Company on the condition that the petitioner at all times shall maintain stock minimum worth ₹ 1,45,54,575/-, which is being maintained as per the observations of this court. In view of the observa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r files an appeal against the order of the assessment and applies for waiver of pre-deposit the Commissioner may decide such request unmindful of any of the observations made in the order passed by this court. Accordingly, the petitioner filed an appeal along with stay application on 16.11.2017 against the assessment order dated 18.08.2017 received on 19.09.2017. 13. Indubitably, the appeal and the stay application of the petitioner was filed within a period of 60 days before the appellate authority. During pendency of the same, the respondents have issued the impugned notice directing the bank of the petitioner-Company to deposit the amount specified therein towards recovery of demands conferred by the assessment order dated 18.08.2017, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner together with the stay applications were pending consideration before the first appellate authority . 14. In the present case, no hearing is yet granted by the first appellate authority on the appeal and stay application though the same were filed on 16.11.2017. Thus, the impugned notice is issued on 22.11.2017 after a week despite the fact that the appeal and stay application were pending for hearing. It is not the case of the respondents that the same are not heard because of any fault attributed to the petitioner-Company. In our considered opinion, the observations made by this court in the judgement dated 17.10.2015 passed in Special Civil Application No.13641 of 2015 shelters the issue raised in the present petition. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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