ORAL ORDER

(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)

1. By this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs:

“(a) Quash and set aside the impugned Letter dated 18.07.2019 issued by Respondent no. 2 in the form of Notice under Section 152 of Bombay Land Revenue Code, 1879 for attachment of registered property of the petitioners;

(b) Direct respondents herein, pending the present petition, not to initiate any recovery proceedings;

(c) For ad-interim relief in terms of prayer (a) and (b) above;

(d) For costs of the petition;

(e) For such further and other relief as the nature and circumstances of the case may be warrant as deemed fit by this Hon'ble Court.”

2. The short point involved in this writ application is whether the impugned notice under Section 152 of the Bombay Land Revenue Code, 1879 could have been issued for the purpose of recovery of tax as determined, pending the appeal and the stay application before the Gujarat Value Added Tax Tribunal at Ahmedabad.

3. We have heard Mr. Amal Dave, the learned counsel appearing for the writ applicant and Mr. Chintan Dave, the learned AGP appearing for the State.

4. On 9.8.2019, this Court passed the following order : “Let Notice be issued to the respondents returnable on 18th September, 2019.

Having regard to the fact that the Writ applicant has preferred an appeal before the Appellate Authority along with the stay application and 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 In this regard, it is submitted that the petitioner has already withdrawn the second appeal so filed before the VAT Tribunal. Therefore, as the main second appeal is withdrawn, stay application automatically gets disposed off. As on date as per the knowledge available with the respondent authorities that the petitioner has not preferred any other application before any of the other judicial forum. The petitioner is not enjoying any stay from recovery of tax from any of the authorities and therefore the initiation of recovery authorities by the respondent authorities by issuance of impugned notice dated 18.07.2019 is just and proper. Copy of the order dated 24.09.2019 wherein the petitioner has withdrawn the second appeals filed before VAT Tribunal is annexed hereto and marked as Annexure – R1.

8. It is further submitted before this Hon'ble Court as provided under Section 46(2) of the Act if any order is passed by the respondent authorities on notice issued under Section 46(1) , the same can be challenged by way of filing of statutory appeal as provided under Section 73 of the Act. In the facts of the present case, the petitioner has avoided responding to the impugned notice dated 18.07.2019 and straightway has challenged the said notice before this Hon'ble Court. Therefore, the present petition is premature and deserves to be dismissed.”

6. Mr. Dave thereafter with his usual fairness invited the attention of this Court to the averments made in paras 3 and 4 respectively of the rejoinder filed by the writ applicant, which reads as under:

“3. In reply to Paragraph 4-6 of affidavit in reply, I say and submit that the act of the Answering Respondent, 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