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TMI Blog2019 (9) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner, Unit-89, Division - 2, Rajkot for the period F.Y. 2014-15; (C) YOUR LORDSHIPS may be pleased ti issue writ of Mandamus or any other appropriate writ, order or direction quashing and setting aside the notice for amount assessed in Form No.305 dated 24.03.2019 issued by the Ld. Assistant State Tax Commissioner, Unit-89, Division - 2, Rajkot for the assessment period F.Y. 2014-15. (D) Pending admission and final disposal of this Petition, this Hon'ble Court be pleased to stay the recovery of dues on the basis of the Notice annexed at Annexure A (Collectively); (E) Ex-parte ad interim relief in term of Para (D) may kindly be granted; (F) Such other and further relief/s as may be deemed just in the facts and circumstances of the present case may kindly be granted;" 2.1 It appears from the materials on record that the writ applicant seeks to challenge the assessment order dated 24.03.2019 passed in the Form No.304 as well as the demand notice dated 24.03.2019 issued in the Form No.305 by the Assistant State Tax commissioner, Unit - 89, Division - 2, Rajkot under Section 34(2) of the Gujarat Value Added Tax Act, 2003 (for short "the Act, 2003"). 2.2 The chall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Petitioner for the period under consideration came up before Respondent No.2. The Respondent authority being of the view that the method adopted by the Petitioner for arriving at taxable turnover of sales not being in consonance with the provisions of Section 2(30)(c) of the Act, issued a communication dated 06.03.2019 intimating the Petitioner that he has decided to frame assessment by adopting method as provided in Sec.2(30)(c) of the Act for arriving at taxable turnover of sales. The Respondent authority had also decided, which is reflected in the intimation, that the method adopted by the Petitioner for arriving at taxable turnover of sales is liable to be rejected. 2.6 The Respondent authority along with such intimation also issued Notice in Form No.309 dated 06.03.2019 for imposing penalty under Sec. 34(7) and 34(12) of the Act. The said notice is in a cyclostyle format which indicates 18 instances where penalty under the Act can be imposed. The Respondent authority has clearly failed to indicate a single instance or reason to believe why a huge penalty to the tune of Rs. 11,68,53,998 was required to be imposed. Believing it to be true without accepting that there are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arbitrary, illegal and the same is passed without adhering to the principles of natural justice." 3. Mr. Tushar Hemani, the learned senior counsel appearing for the writ applicant submitted as follows : (1) The impugned assessment order is in gross violation of the principles of natural justice and not in accordance with law; (2) The assessing authority has not at all dealt with the submissions canvassed on behalf of the writ applicant and has grossly erred in passing the impugned order without any semblance of reasons; (3) The assessing officer issued show-cause notice which only indicated his proposed action without giving any valid reason as to why such an action was contemplated or warranted in the first place and without indicating as to what was wrong or incorrect with the method of accounting consistently followed by the writ applicant; (4) The writ applicant, in details, explained the method of accounting consistently followed by it and also placed on record the details of expenditure to be allowed even if the proposed method is to be followed. 3.1 Mr. Hemani placed strong reliance on the following decisions in support of his submissions : (i) Messrs N.K. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon which output tax of Rs. 17,64,48,509/- assessed after deciding taxable sale as per the percentage of purchase mentioned in the sheet. Rs. 108,16,41,465/- has been accepted as per total purchase sheet, on which Rs. 8,82,68,529/- tax credit is demanded. Out of the same, amount of Rs. 46,34,677/- has been rejected due to mismatch. Setting off remaining Rs. 8,36,33,852/- against output tax, amount of Rs. 9,28,14,657/- is due. No tax has been paid. Deducting TDS (as per form-703) amount of Rs. 1,49,11,992/-, amount of Rs. 7,79,02,665/- is due. Interest amount of Rs. 5,60,89,919/- and 150% fine as per Section- 34(12) amounting to Rs. 11,68,53,998/-, thus, total amount Rs. 25,08,46,852/- is due. Issue demand notice." 4.2 Ms. Mehta submitted that the respondent No.2 has clearly observed in the impugned assessment order that although the writ applicant claimed exemption of the amount of Rs. 46,47,56,881/- on the ground of subletting but, the writ applicant has failed to adduce any evidence in that regard. 4.3 In such circumstances referred to above, Ms.Mehta prays that there being an alternative efficacious remedy available to the writ applicant, he must be relegated to exhaust the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipts. 6.2 It appears that the respondent No.2 has not considered the tax audit report containing the contract wise information alongwith the details of the allowable expenditure. The same is on record. It also appears prima facie that the figures of the total contract receipts, total purchases and allowable expenditure, though duly computed and quantified, have not been looked into or discussed. The respondent No.2 has observed in his impugned assessment order that the method adopted by the writ applicant is not in accordance with Section 2(30)(c) of the GVAT Act. We also take notice of the fact that as regards the penalty under Section 34(12) of the Act, only a cyclostyle penalty notice without indicating the nature of infraction has been issued. 6.3 In the overall view of the matter, we are convinced with the submissions canvassed on behalf of the writ applicant that the matter deserves to be remitted to the respondent No.2 for a fresh consideration with a direction to re-consider the matter, having regard to the materials on record and after hearing the writ applicant. We are not convinced with the method and the manner in which the impugned assessment order came to be passe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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