TMI Blog2019 (9) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... earlier years were also framed accepting such method. 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. The matter remanded 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. - R/SPECIAL CIVIL APPLICATION NO. 13971 of 2019 - - - Dated:- 23-8-2019 - MR J. B. PARDIWALA AND MR A. C. RAO, JJ. For The Petitioner (s) : MR. APURVA N MEHTA (7202) AND VIJ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice referred to above is on the ground that the same is illegal and contrary to the law and has been passed without affording adequate opportunity of hearing. In short, the writ applicant has complained of breach of the principles of natural justice and fair play. The facts, as pleaded by the writ applicant in his own words, are as follows : 2.1 The Petitioner herein is a registered partnership firm having its office mentioned in the cause title. The Petitioner is into the business of executing civil and labour contracts. The Petitioner is a government approved contractor executing government and semi-government contracts. The majority of the partners of the Petitioner firm are citizens of India and therefore, entitled to protection of fundamental rights guaranteed under Part-III of the Constitution of India, 1950. The Petitioner is also a registered dealer under the provisions of the Act. The present Petition concerns the assessment period 2014-15. 2.2 The Respondent No.1 is the State while the Respondent No.2 is the Officer of the State Tax Department of the State of Gujarat entrusted with the task of assessment and collection of tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osed. Believing it to be true without accepting that there are reasons to believe for imposing penalty on the Petitioner, no opportunity worth the name was given to the Petitioner to explain for not imposing the penalty. 2.7 The Petitioner appeared with its books of accounts along with supporting documents on 13.03.2019 at the office of the Respondent authority. The Petitioner during the hearing submitted calculation of taxable turnover of sales as per Section 2(30)(c) of the Act and filed detailed written submissions. Apart from the method of calculation of taxable turnover, no other queries were raised by the Respondent authority nor did he ask for any documents from the Petitioner. 2.8 The Petitioner submits that neither the intimation dated 06.03.2019 provide opportunity of explaining as to why the cost plus gross profit method adopted or deductions claimed be not disallowed while arriving at taxable turnover of sales nor the notice in Form No.309 provide reasons to believe for imposing the penalty on the Petitioner. The hearing on 13.03.2019 was just a formality by the Respondent authority and no opportunity worth the name was given to the P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Fire Safety vs. Union of India (SCA No.10934 of 2019, dated 26/06/2019); ( ii) Calcutta Discount Co. vs. ITO [41 ITR 191 (SC) @ 207-208, para 26-27-28]; ( iii) Whirlpool Corporation vs. Registrar of Trade Marks (1998) 8 SCC 1, para 14 15; ( iv) Vithalani Exports vs. Asst. Commissioner of Commercial Tax (SCA No.8882 of 2015, dated 29/7/15); ( v) Vadilal Gas Ltd. vs. Union of India (2016) 332 ELT 625 (Guj.). 4. On the other hand, this writ application has been vehemently opposed by Ms.Maithili D. Mehta, the learned AGP appearing for the respondents. Ms.Mehta submitted that this writ application may not be entertained only on the ground that the writ applicant has an alternative efficacious remedy of preferring an appeal before the Commissioner. Ms.Mehta submitted that no error not to speak o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8/-, thus, total amount ₹ 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 ₹ 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 same and even otherwise, on merits, the writ applicant has no case. 5. Mr. Tushar Hemani, the learned senior counsel, in rejoinder, submitted that it is not just sufficient for a quasi judicial authority to pass an order without dealing with the submissions canvassed by the litigant. He would submit that if the impugned order is in gross violation of the principles of natural justice, then an efficacious alternative remedy is no bar to entertain the writ application under Article 226 of the Constitution of India. Mr.Hemani submitted that one of the principles of natural justice is fairness. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 passed by the respondent No.2. In such circumstances, we reject the preliminary contention canvassed on behalf of the respondents that the writ applicant should be asked to prefer the statutory appeal available in law. Mr. Hemani, the learned senior counsel is right in his submission that when the impugned order is bereft of the reasons then, the same could be said to be gross violation of the principles of natural justice and, if that be so, then the alternative remedy should not be a bar in entertaining the writ application. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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