Back
Gujarat High Court
Judgename :A.M.KAPADIA, M.S.Shah
SIDDHARTHA FERTICHEM PVT LTD - Appellant
Versus
ASSISTANT COMMISSIONER - Respondent
S.C.A.8054 of 2003
Decided On : 02/12/2004
Taxation – Constitution Of India, 1950 – Article 226 – Gujarat Sales Tax Act, 1969 – Sections 67 and 30aa – Central Sales Tax Act, 1956 – Section 9 (2) – Cancellation of registration as a dealer – Challenged – Petitioner was granted registration under the Gujarat Sales Tax Act and the consequential registration under the Central Sales Tax Act vide registration certificate – Certificate indicated petitioners address at Gandhidham and also the address of the petitioners registered office at New Delhi – Thereafter, the Assistant Commissioner of Sales Tax issued notice calling upon petitioner to show cause why the sales tax registration certificate granted to the petitioner under the Gujarat Sales Tax Act and the Central Sales Tax Act should not be cancelled – It appears that the notice could not be served because of the aftermath of earthquake at Gandhidham-Kutch but the petitioner was served with notice at its New Delhi address – Held, According to authority, petitioner had filed return but the dispute is raised about disclosure of a sale transaction in such return and, therefore, sub-section (2) also could not have been invoked on the basis of the facts mentioned in the impugned order. Similarly, sub-section (2a) of Section 30aa refers to failure to pay tax as per declaration or return within the time prescribed for three or more consecutive periods; the impugned order does not indicate that the petitioner has not paid tax as per the returns for three or more consecutive periods – It appears to us that since the authority has not been able to justify its order under any of the provisions of Section 30aa, impugned order is without any authority of law and deserves to be quashed and set aside – Hasten to add that Section 30aa does not prescribe any period of limitation for invoking the powers thereunder, unlike Section 67 of the Act – Therefore, if respondent-authorities have any material on the basis of which powers of cancellation under Section 30aa may be invoked against the petitioner, this judgment shall not come in the way of the authorities exercising their legitimate powers under Section 30aa – However not be understood to have expressed any opinion either way whether or not invocation of the powers under Section 30aa would be justified against the petitioner because no material is brought to our notice from the impugned order which could justify invocation of the powers under Section 30aa. 14 – Hence petition is allowed. (Paras 12, 13 and 14)
( 1 ) IN this petition under article 226 of the Constitution, the petitioner has challenged the order dated 15. 2. 2002 passed by the Assistant Sales Tax Commissioner, Circle 38, Gandhidham-Kutch purported to have been passed in exercise of the powers under Sections 67 and 30aa of the Gujarat Sales Tax Act, 1969 and Section 9 (2) of the Central Sales Tax Act, 1956 and the order dated 7. 1. 2003 of the Gujarat Sales Tax Tribunal dismissing Revision Application Nos. 78 and 79 of 2002 against the said order of the Assistant Commissioner. By the impugned orders, the petitioners registration as a dealer under the Sales Tax Acts has been cancelled.
( 2 ) THE petitioner was granted registration under the Gujarat Sales Tax Act and the consequential registration under the Central Sales Tax Act vide registration certificate dated 21. 7. 1998. The certificate indicated the petitioners address at Gandhidham and also the address of the petitioners registered office at New Delhi. Thereafter, the Assistant Commissioner of Sales Tax issued notice dated 3. 11. 2001 calling upon the petitioner to show cause why the sales tax registration certificate granted to the petitioner under the Gujarat Sales Tax Act and the Central Sales Tax Act should not be cancelled w. e. f. . 26. 1. 2001. It appears that the notice could not be served at Gandhidham because of the aftermath of the earthquake at Gandhidham-Kutch but the petitioner was served with the notice at its New Delhi address. However, the petitioner did not appear in response to the notice and the Assistant Commissioner of Sales Tax passed the impugned order dated 15. 2. 2002 cancelling the registration of the petitioner under the Gujarat Sales Tax Act and under the Central Sales Tax Act w. e. f. 26. 1. 2001.
( 3 ) THE order was passed under sections 67 and 30aa of the Gujarat Sales Tax Act and under Section 9 (2) of the Central Sales Tax Act, 1956 mainly on the following grounds:- (I) The petitioner had not given its correct address at the time of registration in July 1998. The petitioner had given the address of Shop No. D-72, Mohan Market. However, the said premises were not allotted or let out to the petitioner as there was no such shop bearing No. D-72 in the Mohan Market. Subsequently, the petitioner had changed its place of business to Bhavsar Bhavan, Opposite Old Court, Gandhidham in 1998. The said building had collapsed at the time of earthquake which took place on 26. 1. 2001 and thereafter the petitioners place of business could not be located. (II) A copy of the invoice dated 16. 2. 2001 was traced at the Check Post under which the petitioner had sold crude sulphur valued at Rs. 50,757. 00 to M/s. Jyoti Enterprise of Ahmedpura and the petitioner had thus made an inter-State sale liable to 4% sales tax and the goods were transported by Kandla Cargo Carrier on 16. 2. 2001. However, the petitioner did not pay sales tax on the said transaction. The Assistant Sales Tax Commissioner, therefore, held that the petitioner was using his registration number for making inter-State sales without having any place of business at the address given in the registration certificate. It, therefore, appeared that the petitioner was evading payment of sales tax and the registration certificate was being misused. After the order was served on the petitioner, the petitioner filed one revision application under the Gujarat Sales Tax Act and another revision application under the Central Sales Tax Act for challenging the above order dated 15. 2. 2002. After hearing both the sides, the Tribunal rejected the revision applications by its judgment dated 7. 1. 2003. The petitioner has, therefore, challenged the aforesaid order dated 15. 2. 2002 of the Assistant Sales Tax Commissioner and also the judgment of the Tribunal dismissing the revision applications.
( 4 ) MR Shamsuddin Shaikh, learned counsel for the petitioner has submitted that the impugned order dated 15. 2. 2002 was passed by the Assista
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
