TMI Blog2022 (5) TMI 470X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner an opportunity to justify their returns. In view of the matter, it shall be in the tune of situation to set aside ex-parte assessment orders with direction to the Petitioner to appear before the authority, who in turn shall give them hearing and make the assessment in accordance with law. Since the ex-parte assessment orders is set aside, the bank attachment would also remain no longer in force. The ex-parte assessment orders dated 25th March, 2010 are set aside. The consequential bank attachment orders also stands quashed - Petition disposed off. - WRIT PETITION (STAMP) NO. 357 OF 2021 WITH WRIT PETITION (STAMP) NO. 381 OF 2021 WITH WRIT PETITION (STAMP) NO. 387 OF 2021 WITH WRIT PETITION (STAMP) NO. 407 OF 2021 WITH WRIT PETITION (STAMP) NO. 410 OF 2021 WITH WRIT PETITION (STAMP) NO. 364 OF 2 - - - Dated:- 5-5-2022 - S. V. GANGAPURWALA AND VINAY JOSHI, JJ. Mr. Isshan Patkar a/w Ms Nidhi Shah and Mr. Yash Dhond i/b Adv. Jindagi Shah, Advocates for the Petitioner in all the petitions. Mr. Rajan S. Pawar, AGP for the Respondent-State in all the petitions. P.C: Rule . Rule made returnable forthwith. Heard finally by consent of the parties. 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. WP(ST)/364/2021 2002-2003 (Central Act) 25/03/2010 18/01/2019 Rs.50,96,347/- 13/04/2010 3. WP(ST)/381/2021 2003-2004 25/03/2010 18/01/2019 Rs.3,45,680/- 13/04/2010 4. WP(ST)/407/2021 2003-2004 (Central Act) 25/03/2010 18/01/2019 Rs.21,93,350/- 13/04/2010 5. WP(ST)/387/2021 2004-2005 25/03/2010 18/01/2019 Rs.5,97,383/- 13/04/2010 6. WP(ST)/410/2021 2004-2005 (Central Act) 25/03/2010 18/01/2019 Rs.47,35,605/- 13/04/2010 Section 33(3) of the Act of 1959 empowers the Commissioner to assess the amount of tax, if not satisfied with the return furnished by the assessee. It is not disputed that the Petitioner has filed annual retu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the part of the Respondents, applications remained unattended. Instead of deciding the Petitioner's applications, the department has illegally attached the Petitioner's bank account, which is per-se illegal. According to the Petitioner, the impugned action is unreasonable and totally time barred. Moreover, it is contended that due to the repeal of the provisions of Bombay Sales Tax Act, the action which was taken on 25th March, 2010 would not sustain. The Petitioner would contend that after lapse of sixteen years, it is unreasonable to make fresh assessment. The Petitioner would not be in a position to produce the accounts after long passage of time. Therefore, the Petitioner seeks for quashing and setting aside the impugned assessment orders as well as the consequential bank attachment. It is further contended by the Petitioner that the assessment for the year 2002-2003 and 2003-2004 are time barred. 7. The Respondents justified their action by opposing the petition vide affidavit-in-reply of Joint Commissioner of State Tax, Pune. The Respondents have not disputed the factual aspect about the passing of ex-parte assessment orders, filing of the applications for setting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmissions on the point of illegality in the action on repealed Act and delay in passing assessment orders, the Petitioner's learned Counsel relied on the decision in the cases of Bansidhar and others V/s. State of Rajasthan and others'(1989) 2 SCC 557: AIR 1989 SC 1614., Sales Tax Officer, Circle- l, Jabalpur V/s. Hanuman Prasad (1967) 1 SCR 831 : AIR 1967 SC 565. Parle International Limited V/s. Union of India and others 2020 SCC OnLine Bom 8678 : (2021) 375 ELT 633. and State of Punjab and others V/s. Bhatinda District Cooperative Milk Producers Union Ltd. (2007) 11 SCC 363 : 2007 SCC OnLine SC 1254. Moreover on the point of setting aside ex-parte assessment orders, reliance is placed on the decision in the cases of M/S. Travancore Rayon Ltd. v/s Union of India (1969) 3 SCC 868 : AIR 1971 SC 862. and Prabhakar s/o Adkuji Chahare and others V/s. Subhashchandra s/o Krishnalal Debnath another. 2020 SCC OnLine Bom 11632 : (2021) 2 Mah LJ 545. 10. Most of the factual aspect is not in dispute. The Petitioner has filed annual returns for three financial years simultaneously in the year 2006. There is no quarrel on the point that the assessment orders in terms o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons are saved under Maharashtra Value Added Tax Act, however, nothing was saved by introduction of new GST Act. On the other hand, the Respondents contended that the assessment was 'open' as well as made within limitation, therefore, their action is justifiable. 12. We are of the view that since two layers of appeal have been provided to challenge the assessment, the said exercise cannot be undertaken under writ Jurisdiction. It is well settled that the writ Court should be slow in interfering into the matters, where alternative remedy of appeal has been provided. Therefore, we deem it appropriate to keep all these points open to be agitated and decided before the appropriate forum. 13. Reverting back, it emerges that the Petitioner has timely applied for setting aside ex-parte assessment orders. There is no justification for the Respondents total inaction of sleeping over the application for long ten years. In other words, ex-parte assessment order needs to be set aside so as to give the Petitioner an opportunity to justify their returns. In view of the matter, it shall be in the tune of situation to set aside ex-parte assessment orders with direction to the Petition ..... X X X X Extracts X X X X X X X X Extracts X X X X
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