TMI Blog2020 (1) TMI 265X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment proceedings in abeyance as they wanted to avail the benefit of the amnesty scheme, the respondent ought to have respected such request and afforded the petitioners sufficient time to avail the benefit of the amnesty scheme, however, on the contrary, the second respondent, in undue haste, has proceeded to pass an ex parte high pitched best judgment assessment order under section 34(8) of the GVAT Act. Section 17 of the GVAT Act provides for power to transfer proceedings and lays down that the Commissioner may, after due notice to the concerned parties and by an order in writing, transfer any proceedings or class of proceedings under any provision of that Act from himself to any other officer and he may likewise transfer any such proceedings from such officer to another or to himself - In the facts of the present case, on a perusal of the reply received by the petitioners in response to their application under the Right to Information Act, it is evident that the jurisdiction of the petitioners was not transferred to the second respondent - Consequently, the second respondent did not have any jurisdiction to make assessment in the case of the petitioners, which renders the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heth for the Petitioner Mr Trupesh Kathiriya, Assistant Government Pleader for the Respondent COMMON ORAL JUDGMENT PER: HONOURABLE MS.JUSTICE HARSHA DEVANI 1. Rule. Mr. Trupesh Kathiriya, learned Assistant Government Pleader waives service of notice of rule on behalf of the respondents in both the petitions. Having regard to the controversy involved in the present case which lies in a very narrow compass as well as the urgency of the matter, the petitions were taken up for final hearing today. 2. Since the subject matter of both these petitions is identical and the facts are also more or less similar and the parties are also common, both these petitions were taken up for hearing together and they are decided by this common judgment. For the sake of convenience reference is made to the facts as appearing in Special Civil Application No.19147 of 2019. 3. The petitioner No.1, a partnership firm, started business of development, construction and sale of flats in the year 2014-15. It is the case of the petitioners that they bona fide believed that they were selling immovable property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he second respondent for almost two years. Since the petitioners wanted to pay the applicable taxes and put an end to the matter, they addressed letters to the jurisdictional officer as well as the superior authorities requesting for generation of task for assessment of the petitioners for the unregistered period. It was stated by the petitioners that they voluntarily wanted to pay tax and therefore, were making such request. 7. By a notice dated 30.8.2019 issued by the second respondent, the petitioners were called upon to remain present for assessment on 16.9.2019 for assessment of the unregistered period. In the meanwhile, the Government of Gujarat passed resolution dated 11.9.2019 announcing an amnesty scheme. The benefit of such scheme was available to cases pending at all stages, that is, cases pending assessment as well as cases pending in appeal. In cases pending assessment, the applicants were required to declare self-assessed liability and also give an undertaking to pay any further liability under the GVAT Act. The last date for making an application under the amnesty scheme was 15.11.2019. 8. On 16.9.2019, that is, the date fixed for hear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent that the petitioner wants to avail the benefit of the Amnesty Scheme, the second respondent was not justified in passing the assessment order. 2. Having regard to the submissions advanced by the learned advocate for the petitioner, issue Notice, returnable on 11th November 2019. By way of ad-interim relief, the operation of the impugned order dated 27.09.2019 passed by the second respondent (Annexure 'A' to the petition) is hereby stayed. 3. In the meanwhile, it would be open for the petitioner to file an application under the Amnesty Scheme dated 11.09.2019 subject to the final outcome of this petition. 4. Direct service is permitted. 10. The learned advocate for the petitioners has stated that pursuant to the said order, the petitioners have filed an application under the amnesty scheme. 11. Vehemently assailing the impugned orders, Mr. Uchit Sheth, learned advocate for the petitioners, submitted that when the State Government had come up with an amnesty scheme, and the petitioners had requested the second respondent to keep the assessment proceedings in abeyance, the second ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts of the present case, it is an admitted position that the proceedings were not transferred to the second respondent and hence, the assessment order is without jurisdiction as the second respondent was not the appropriate authority to make assessment in the case of the petitioners. 11.3 Referring to the impugned order, it was pointed out that the Assessing Officer has observed that the petitioners are not entitled to get the benefit under the amnesty scheme as their case is an enforcement case. It was submitted that in this case, the search was conducted at the premises of M/s. Garden City and not in the case of the petitioner and therefore, this was not an enforcement case. To bolster such submission, the learned advocate invited the attention of the court to the reply dated 1.11.2019 received by the petitioners in response to the application filed by them under the Right to Information Act, 2005 wherein, it has been stated that no search warrant has been issued in the name of the firm - M/s. Sunflower Developers. Furthermore, the attention of the court was invited to the provisions of the Tax Amnesty Scheme, 2019 issued by the State Government vide Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment order is set aside and in case for any reason the petitioners are held to be not entitled to the benefit of the scheme, the respondent authorities would be left with no other option on the basis of which further proceedings could be taken. It was further submitted that against the impugned assessment order, the petitioners have an alternative statutory remedy available under the provisions of the GVAT Act and hence, this court may not entertain this petition under article 226 of the Constitution of India. It was urged that the impugned order cannot be said to be without jurisdiction as the respondent authority has the power to pass an order after granting opportunity of hearing under section 34(8) of the GVAT Act, which has been done in the present case. It was accordingly urged that the court may not entertain the petition and that the petitioners be relegated to avail the alternative statutory remedy available under the GVAT or to avail of the benefit of the amnesty scheme as they may deem fit. 13. This court has considered the submissions advanced by the learned advocates for the respective parties. The facts are not in dispute. A search was carried ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n and assessment would be completed. It is the case of the petitioners that they have not received the two assessment notices dated 18.11.2017 or 17.11.2018. 14. Since the amnesty scheme declared on 11.9.2019, also covers the GVAT Act, the petitioners were desirous of availing the benefit of the scheme. Accordingly, on 16.9.2019, the petitioners requested the second respondent to keep the assessment proceedings in abeyance as they wanted to avail the benefit of the scheme. The second respondent, however, ignored the request of the petitioners and proceeded further, to not only make a best judgment assessment, but also determine the eligibility of the petitioners to make an application under the amnesty scheme. 15. In this backdrop, it may be germane to refer to the object behind the above referred amnesty scheme. The preamble of the Amnesty Scheme provides that the Goods and Services Act has been brought into force in the State with effect from 1.7.2017. Prior to the coming into force of this enactment, there were approximately more than 20,000 cases pending at different levels under the Sales Tax Act, Value Added Tax Act, Central Sales Tax Act, Moto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned assessment order. Section 17 of the GVAT Act provides for power to transfer proceedings and lays down that the Commissioner may, after due notice to the concerned parties and by an order in writing, transfer any proceedings or class of proceedings under any provision of that Act from himself to any other officer and he may likewise transfer any such proceedings from such officer to another or to himself. In the facts of the present case, on a perusal of the reply received by the petitioners in response to their application under the Right to Information Act, it is evident that the jurisdiction of the petitioners was not transferred to the second respondent. Consequently, the second respondent did not have any jurisdiction to make assessment in the case of the petitioners, which renders the impugned assessment orders null and void as they have been passed by an authority which lacked the jurisdiction to make such orders. 18. Significantly, not only has second respondent not considered the petitioners request to keep the proceedings in abeyance and passed the impugned assessment orders, he has gone a step further and also decided on the eligibility of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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