TMI Blog2022 (3) TMI 356X X X X Extracts X X X X X X X X Extracts X X X X ..... T AND 1 OTHER (S) [ 2019 (7) TMI 468 - GUJARAT HIGH COURT] where it was held that the powers under sub-section (8A) of Section 34 of the VAT Act would be available when a certain claim or a transaction has not been subjected to audit assessment under sub-section (2) of Section 34 of the VAT Act. It is also clear that to invoke the provision of sub-section (8A) of Section 34 of the VAT Act, some proceedings must be pending. The Sub-section (8A)(a) can be invoked during the course of any proceedings under the Act, 2003. To put it in other words, it is only in the course of any proceedings pending against the dealer under the Act, if it comes to the notice of the authority that the tax has been evaded or the tax liability has not been di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed to stay the implementation, operation and the execution of the impugned Notice dated 26.7.2019; (D) Ex-parte ad-interim relief in terms of prayer - C may kindly be granted; (E) Such further relief(s) as may be deemed fit in the facts and circumstances of the case may kindly be granted in the interest of justice for which act of kindness the petitioner shall forever pray. 2. The facts giving rise to this litigation may be summarized as under:- 2.1 The writ-applicant is a private limited Company duly registered under the provisions of the Indian Companies Act. The Company is in the business of delivering sophisticated water treatment Cells and turnkey execution and development of environment and infrastructure proje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s under this Act, if the prescribed authority is satisfied that the tax has been evaded or sought to be evaded or the tax liability has not been disclosed correctly or excess tax credit has been claimed by any dealer in respect of any period or periods by not recording or recording in an incorrect manner, any transaction of sale or purchase, or that any claim has been incorrectly made, then in such a case notwithstanding any notice for assessment has been issued under other provisions of this section or any other section of this Act, the prescribed authority may, after giving such dealer a reasonable opportunity of being heard, initiate assessment of the dealer in respect of such transaction or claim: Provided that where such proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2003. To put it in other words, it is only in the course of any proceedings pending against the dealer under the Act, if it comes to the notice of the authority that the tax has been evaded or the tax liability has not been disclosed correctly or excess tax credit has been claimed in respect of any period or periods, then the authority can initiate assessment of the dealer in respect of such transaction or claim. 9. In the case on hand, the Commercial Tax Officer-(3), Unit-9, Ahmedabad wants to reopen the assessment for the F.Y.2009-10. The authority wants to undertake the assessment under Section- 34(8A) of the Act on the strength of the AG Audit. 10. However, in the impugned notice, the authority has not made himself clear as to in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate of 4%+1% additional tax under Entry No.85 of Schedule II to the VAT Act under subsection (8A) of Section 34 of the VAT Act. The said assessments were neither challenged by the petitioner nor the order was taken in revision within the stipulated time period and thus, the said assessment orders have attained finality. On the date of issuance of the impugned notices, no proceedings were pending under the VAT Act. If such proceedings are permitted, it would amount to permit the Assessing Officers to sit in a appeal over his own orders. In such circumstances, the respondent could not have invoked the provisions of subsection (8A) of Section 34 of the VAT Act and issued the impugned show cause notices. Under the circumstances, both these pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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