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TMI Blog2019 (3) TMI 1143X X X X Extracts X X X X X X X X Extracts X X X X ..... for in the petition except for the relief prayed for vide paragraph 9(bbb) of the petition. Under the circumstances, the present petition is confined to the relief prayed for vide paragraph 9(bbb) of the petition. 2. By this petition under Article 226 of the Constitution of India, the petitioner has challenged the communication dated 2.6.2015 (Annexure "F" to the petition), whereby the Commercial Tax Officer, Gandhidham (Kutch) has requested the Secretary, Kandla SEZ Authority, Kandla not to allow any movement or transfer of machinery or fixed assets in the case of Chakra Udyog Pvt. Ltd. having its premises in Plot No.287 to 293, Sector-4, Kandla Free Trade Zone, Gandhidham (hereinafter referred to as "the subject property") for the safety ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Financial Institutions Act, 1993 before the Debt Recovery Tribunal, Mumbai. Subsequently, efforts have been made to auction the subject property. 3.2 Thereafter, by the impugned communication dated 2.6.2015, the Commercial Tax Officer, Gandhidham (Kutch) instructed the Secretary, Kandla SEZ Authority, Gandhidham not to allow movement or transfer of machinery or fixed assets of the respondent No.4 - M/s Shrichakra Udyog Pvt. Ltd., having its premises on the subject property in view of the pending tax dues as referred to hereinabove. Being aggrieved, the petitioner has filed the present petition challenging the said communication. 4. The third respondent - Joint Development Commissioner, Gandhidham, Kutch has filed an affidavit-in-repl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty to issue such an order and hence, the impugned communication is required to be quashed and set aside. 7. Opposing the petition, Mr. Utkarsh Sharma, learned Assistant Government Pleader, invited the attention of the court to the provisions of section 46 of the Gujarat Value Added Tax Act, 2003 (hereinafter referred to as "the GVAT Act"), to submit that the Commercial Tax Officer, in exercise of powers under section 46 of the said Act, has issued instructions to the Kandla SEZ Authority not to allow movement or transfer of machinery or fixed assets in respect of the dealer in question. It was submitted that the authorities are duly empowered to take such steps as may be necessary to protect the interest of the revenue and the defaulting a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 12,98,85,240/- has arisen after assessment of 2010-11 in the case of M/s Shrichakra Udyog Pvt. Ltd., having its premises in Plot No.287 to 293, Sector 4 in Kandla Free Trade Zone, Gandhidham and in view of the pending dues, has requested the authority not to allow movement or transfer of machinery or fixed assets. Since the subject property is under the attachment and possession of the petitioner bank, it is aggrieved by the above referred communication. 11. In this regard it may be noted that upon a specific query put to the learned Assistant Government Pleader to satisfy the court as regards the source of said power to issue such communication, he has referred to the provisions of section 46 of the GVAT Act which makes provision for "S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Bombay Land Revenue Code, 1879. In the present case, a bare perusal of the contents of the communication dated 2.6.2015, makes it evident that the same is not relatable to any power exercised under the Bombay Land Revenue Code as envisaged under section 46 of the GVAT Act. In fact, the impugned communication is totally silent as regards the source of power under which the same has been issued. It appears that merely by dint of the fact that the officer concerned is the Commercial Tax Officer, he seems to have addressed the impugned communication to the Kandla SEZ Authority, not to allow movement or transfer of machinery or fixed assets of the respondent No.4 herein. 13. In the opinion of this court, the impugned communication dated 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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