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2020 Supreme(Guj) 190
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B. PARDIWALA, BHARGAV D. KARIA, JJ.
Nathalal Maganlal Chauhan - Petitioner
Versus
State of Gujarat - Respondent
R/Special Civil Application No. 513 of 2020 With R/Special Civil Application No. 2741 of 2020
Decided On : 04-02-2020
For the Petitioner: Mr. Chetan K. Pandya.
For the Respondents:Mr. Kamal B. Trivedi, Advocate General with Mr. Vinay Vishen and Mr. Chintan Dave, A.G.P.
Point of Law:
As per section 45 of the Gujarat Value Added Tax Act, 2003 the Commissioner was empowered to initiate the proceedings of attachment of bank account of the dealer in order to protect the interest of Government revenue. The said powers were delegated by the Commissioner under section 16 of the Gujarat Value Added Tax Act, 2003.
Headnote:
Writ Petition – Writ of mandamus – Writ of prohibition – Constitution of India – Article 226 – Special Civil Application – Writ-applicant, his son had rented the factory premises including the machines of the proprietary concern to one for the purpose of manufacturing miscellaneous articles of plastics on job work basis. Few officers from the office of the Commissioner of State Tax visited the residential premises of the writ-applicant and inquired about the whereabouts of his son. It is alleged that the officers harassed the family by their presence in the flat for almost a period of one week. In view of the aforesaid, a Special Civil Application came to be filed in this High Court with prayers. Held – In Court’s opinion, it does not make any difference. The very same reasonable belief will be that of the authority upon whom the power is delegated. The power under Section 69 of the Act can be exercised by the authority upon whom the power is delegated provided the delegatee has reasons to believe that the assessee has committed offence under Section 132 of the Act– Petition dismissed. (Para 59)
Facts of the Case:
Writ-applicant, his son had rented the factory premises including the machines of the proprietary concern to one for the purpose of manufacturing miscellaneous articles of plastics on job work basis. Few officers from the office of the Commissioner of State Tax visited the residential premises of the writ-applicant and inquired about the whereabouts of his son. It is alleged that the officers harassed the family by their presence in the flat for almost a period of one week.
Finding of the Court:
The very same reasonable belief will be that of the authority upon whom the power is delegated. The power under Section 69 of the Act can be exercised by the authority upon whom the power is delegated provided the delegatee has reasons to believe that the assessee has committed offence under Section 132 of the Act.
Result: Petition dismissed.
JUDGMENT :
J.B. PARDIWALA, J.
1. RULE returnable forthwith. Mr. Vinay Vishen and Mr. Chintan Dave, the learned AGP waive service of notice of rule for and on behalf of the State respondents.
2. Since the issues raised in both the writ-applications are the same, those were heard analogously and are being disposed of by this common judgment and order.
3. For the sake of convenience, the Special Civil Application No.513 of 2020 is treated as the lead matter. By this writ-application under Article 226 of the Constitution of India, the writ-applicant has prayed for the following reliefs :
“(a) To issue a writ of mandamus and/or any other writ, order or direction, directing to quash and set aside the Notification No.EST/1/Jurisdiction/B.2168 dated 05.07.2017 issued by the Commissioner of State Tax, Gujarat State at Annexure-A to the petition.
(b) Pending admission, final hearing and disposal of this petition, to stay implementation and operation of the Notification No.EST/1/Jurisdiction/B.2168 dated 05.07.2017 issued by the Commissioner of State Tax, Gujarat State at Annexure-A to the petition.
(c) Pending admission, final hearing and disposal of this petition to release the petitioner's son Paresh Nathalal Chauhan as he has been arrested under the authorization issued by Additional Commissioner of State Tax exercising powers under Section 69 of the Gujarat Goods and Services Tax Act, 2017 relying on the Notification dated 05.07.2017 at Annexure-A to this petition.
(d) Pass such other and further orders as the Hon'ble Court deems just and expedient.
(e) To provide for the cost of this petition to the petitioner.”
4. The facts giving rise to the present writ-application may be summarised as under :
5. It is the case of the writ-applicant that his son, namely Paresh Nathalal Chauhan, is a proprietor of a proprietary concern running in the name of Lancer Enterprise. The proprietary firm is situated at Vrundavan Estate, Ramol, Ahmedabad.
6. According to the writ-applicant, his son had rented the factory premises including the machines of the proprietary concern to one Mr. Nipun Patel for the purpose of manufacturing miscellaneous articles of plastics on job work basis. Few officers from the office of the Commissioner of State Tax visited the residential premises of the writ-applicant on 11th October 2019 and inquired about the whereabouts of his son. It is alleged that the officers harassed the family by their presence in the flat for almost a period of one week. In view of the aforesaid, a Special Civil Application No.18463 of 2019 came to be filed in this High Court with the following prayers :
“(A) To issue a writ of mandamus and/or writ of prohibition and/or any other appropriate writ, order or direction, directing the respondents not to take any actions against the petitioner being proprietor of the Lancer Enterprise exercising powers under Section 69 read with Section 132 without following due process of law of assessment and adjudication of alleged evasion of GST as contemplated under Section 61, Section 73 or under Section 74 of the Central Goods and Services Tax Act, 2017 and Gujarat Goods and Services Tax Act, 2017 i.e. before following provisions of Chapter XII of Central Goods and Services Tax Act, 2017 and Gujarat Goods and Services Tax Act, 2017 and Chapter VIII of Central Goods and Services Tax Rules, 2017 and Gujarat Goods and Services Tax Rules, 2017 in connection with investigation initiated by the State Tax, Unit-22, Ahmedabad i.e. by the respondents.
(B) To issue a writ of mandamus and/or writ of prohibition and/or any other appropriate writ, order or direction, directing to quash and set-aside an order dated 23.06.2017 bearing No.GSL/S.5(1)/B.1 passed by the Commissioner of State Tax, Gujarat in exercise of powers under sub-section (1) of Section 5 read with clause (91) of Section 2 of the GGST and the rules framed thereunder assigning functions to the proper officers to be performed by the higher officer under GGST at Annexure-A
