TMI Blog2021 (2) TMI 299X X X X Extracts X X X X X X X X Extracts X X X X ..... further proceedings under Section 152 of the Land Revenue Code. In fact, we may observe that no such notice under Section 152 of the Code could have been issued. Thus, at-least till the stay application is disposed of, the department should not initiate any action for the purpose of recovering the tax demand. The impugned notice dated 18.07.2019 issued by the respondent no.2 under Section 152 of the Land Revenue Code is quashed - application disposed off. - R/Special Civil Application No. 13829 of 2019 - - - Dated:- 29-1-2021 - Honourable Mr. Justice J.B. Pardiwala And Honourable Mr. Justice Ilesh J. Vora For the Petitioner(s) : Mr Anand Nainawati For the Respondent(s) : Government Pleader ORAL ORDER (PER : HONOU ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the same is pending as on date, let there be an ad-interim relief in terms of paragraph 22(b). Direct service is permitted. 5. Mr. Dave, invited attention of this Court to the averments made in paras 7 and 8 respectively of the affidavit-in-reply filed on behalf of the respondent no. 2. 7. It is further submitted before this Hon'ble Court that the petitioner raised a grievance that as they stay application along with appeal is pending before the VAT Tribunal, the respondent authorities could not have initiated recovery proceedings. In this regard, it is submitted that the petitioner has already withdrawn the second appeal so filed before the VAT Tribunal. Therefore, as the main second appeal is withdrawn, stay applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent, while the matter was pending for hearing before Gujarat Value Added Tax Tribunal in proceedings against the Petitioner and further, issuing the impugned Notice attaching the personal properties of the Petitioner in case of failure to deposit penalty within 7 days under section 152 of the Bombay Land Revenue Code, 1879 amounts to coercive recovery and goes against the settled position of law that no coercive recovery can be initiated till the appeal along with stay application is pending before the higher forum. The Petitioner submits that such arbitrary exercise of statutory power conferred upon the Answering Respondent under Section 46 of the Gujarat VAT Act, 2003 is a violation of the fundamental rights of the Petitioner to carr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue Code. In fact, we may observe that no such notice under Section 152 of the Code could have been issued. In this regard, we find reference of many decisions referred to in the memo of the writ application taking the view that at-least till the stay application is disposed of, the department should not initiate any action for the purpose of recovering the tax demand. 9. In such circumstances referred to above, we quash the impugned notice dated 18.07.2019 issued by the respondent no.2 under Section 152 of the Land Revenue Code. After same time, we request the Tribunal to take up the appeal as well as the stay application for hearing in accordance with law. 10.With the above, this writ application is disposed of. - - TaxTMI - TMIT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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