NEUTRAL CITATION

undefined

R/SPECIAL CIVIL APPLICATION NO. 9431 of 2020 =========================================================

M/S DHARTI QUARRY WORKS Versus STATE OF GUJARAT ==========================================================

Appearance:

MR D K TRIVEDI(5283) for the Petitioner(s) No. 1,2 NOTICE SERVED(4) for the Respondent(s) No. 1,2,3,4,5 ==========================================================

CORAM: HONOURABLE MR. JUSTICE J.B.PARDIWALA and HONOURABLE MR. JUSTICE ILESH J. VORA Date : 01/02/2021

ORAL ORDER

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

1.By this writ application under Article 226 of the Constitution of India, the writ applicants have prayed for the following reliefs :- “A. Your Lordships may be pleased to admit this petition;

B. Your Lordships may be pleased to allow this petition;

C. Your Lordships may be pleased to issue a writ of Mandamus or any other appropriate writ, order or direction holding the action of non-grant of refund of the amount collected without raising formal demand thereof by passing an order as illegal and arbitrary and Your Lordships may direct the Respondent No.3 to immediately pay refund of Rs.14,61,850/- along with interest at commercial rate for the period from the date it was recovered from the petitioner uptil the date on which the said amount is paid to the petitioner.”

2.The writ applicant No.1 is a partnership firm and the writ applicant No.2 is one of the partners of the said firm.

3.The writ applicants seek to challenge the decision of the respondent No.4 in declining to grant the refund of the amount recovered during the search for the period between F.Y. 2012-13 and 2015-16 to the tune of Rs.14,61,850/-, which according to learned counsel for the writ applicants has not been appropriated by passing the audit assessment orders and the same now having become time barred.

4.It appears from the materials on record that the writ applicants are engaged in the business of excavation and grinding of black trap stones and sale of the products like grit, rubbles etc.

5.We have heard Mr. D.K.Trivedi, the learned counsel appearing for the writ applicants and Mr. Chintan Dave, the learned AGP appearing for the respondents.

6.The stance of the respondents in the present litigation as reflected from the averments made in para 6 of the reply, reads as under:

“6. It is further submitted before this Hon'ble Court that the respondent authorities have initiated assessment proceedings in case of the petitioner for Financial year 2012-13, 2013-14, 2014-15. The respondent authorities had also initiated penalty proceedings for Financial Year 2015-16. In this regard, notices in Form No.302, 304 and 309 for initiation of assessment proceedings under section 34 (2) of the Gujarat Value Added Tax Act, 2003 came to be served upon the petitioner on 28/12/2015 itself. The petitioner was called upon to remain present with all the

NEUTRAL CITATION

undefined

the course of assessment proceedings before the respondent authorities on 13/01/2016. However, it appears that the neither the petitioner nor any of its authorized representatives appear before the respondent authorities on 13/01/2016 for conducting assessment proceedings. Therefore, the respondent authorities were constrained to pass ex parte assessment orders in absence of the petitioner. Copies of the notices issued by the respondent authorities as well as the assessment orders passed in this regard are annexed hereto and marked as ANNEXURE-A (colly).”

7. In answer to what has been stated in para 6 of the reply referred to above, the following has been stated in para 5.1 of the Rejoinder filed by the writ applicants to the reply : “5.1 In regard to para 06 of Affidavit-in- Reply,it is submitted that it is mentioned therein that respondent authorities had initiated penalty proceedings for F.Y. 2015- 16. However, same is partially true, as provisional assessment along with penalty proceedings were initiated for F.Y. 2015-16. As far as

Click Here to Read the rest of this document