TMI Blog2020 (12) TMI 1171X X X X Extracts X X X X X X X X Extracts X X X X ..... whole or any part of the taxable turnover of the dealer in respect of any period, has escaped assessment or has been under assessed or has been assessed at a rate lower than the rate at which it is assessable or wrongly been allowed any deduction therefrom, or has wrongly been allowed any tax credit therein, the Commissioner may serve a notice on the dealer and after giving an opportunity of hearing, proceed to pass appropriate order to determine the best of his judgment, the amount of tax due from the dealer. In this petition, it is the original assessment order disallowing the credit which is made the subject matter of challenge. This Court is yet to adjudicate this writ application. If ultimately the writ applicant is not successful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als since 2005. The writ applicant is duly registered under the VAT Act as well as the Central Sales Tax Act, 1956. The writ applicant received a statutory notice dated 14.03.2017 under the VAT Act for the assessment year 2014-15 issued by the Assistant Commissioner of Commercial Tax, Ghatak-39. It appears that after a long drawn proceedings as pointed out by the writ applicant in the pleadings, the assessment order dated 29.03.2019 came to be passed and the same was received by the writ applicant almost after a period of six months. 3. The above compelled the writ applicant to come before this Court by filing the Special Civil Application No.18263 of 2019. The assessment order came to be challenged on the ground of being wholly without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) thereof requires that prior to transfer of proceedings, the Commissioner after due notice to the concerned parties shall pass an order in writing. It was submitted that in this case no notice has been issued to the petitioner under sub-section (1) of section 17 of the Act and hence, the officer concerned had no jurisdiction to pass the impugned order. 3. It was further submitted that prior to passing the impugned order, no opportunity of hearing had been given to the petitioner, inasmuch as, the learned advocate for the petitioner was called upon to remain present for hearing on 31.3.2019, whereas the impugned order has purportedly been passed on 29.3.2019. It was submitted that, therefore, the impugned order suffers from the breac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re this Court with the present writ application. 4. We have heard Mr. Uchit Sheth, the learned counsel appearing for the writ applicant and Mr. K.M.Antani, the learned AGP appearing for the State respondent. 5. By our order dated 11.12.2020, we had issued the Notice to the respondents for final disposal, making it returnable today i.e. on 21.12.2020. The short point for our consideration is whether the impugned order of reassessment once again raising a demand by disallowing the very same input tax credit which was disallowed in the original assessment, is tenable in law ? 6. Mr. Sheth, straightaway invited our attention to Section 35 of the Gujarat VAT Act, 2003 (for short the VAT Act, 2003). Section 35 of the Act is in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dealer in respect of any period, has escaped assessment or has been under assessed or has been assessed at a rate lower than the rate at which it is assessable or wrongly been allowed any deduction therefrom, or has wrongly been allowed any tax credit therein, the Commissioner may serve a notice on the dealer and after giving an opportunity of hearing, proceed to pass appropriate order to determine the best of his judgment, the amount of tax due from the dealer. 2. Mr. Sheth, the learned counsel appearing for the writ applicant is right in his submission that Section 35 of the Act could not have been invoked for the purpose of passing the order of reassessment as no credit has been allowed in the previous assessment. It is only if any c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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