SURBHI ENTERPRISE vs. STATE OF GUJARAT

C/SCA/1743/2021 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 1743 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 1746 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 1868 of 2021 ========================================================== SURBHI ENTERPRISE Versus STATE OF GUJARAT ========================================================== Appearance: MR D K TRIVEDI(5283) for the Petitioner(s) No. 1 for the Respondent(s) No. 1,2,3 ========================================================== CORAM: HONOURABLE MR. JUSTICE J.B.PARDIWALA and HONOURABLE MR. JUSTICE ILESH J. VORA

Date : 01/02/2021

COMMON ORAL ORDER (PER : HONOURABLE MR. JUSTICE ILESH J. VORA) 1. Heard Mr. DK Trivedi, the learned counsel appearing for the writ applicant and Mr. Chintan Dave, the AGP for the respondent State on advance copy. 2. Since these all the petitions under Article 226 of the Constitution of India, raised identical and common issues, they were taken up for final hearing and same were heard together and are being disposed of by this common order. 3. The writ applicant has prayed the following reliefs: “A. Your Lordships may be pleased to admit this petition; Page 1 of 5

C/SCA/1743/2021 ORDER B Your Lordships may be pleased to allow this petition; C Your Lordships may be pleased to issue writ of mandamus or any other appropriate writ quashing and setting aside orders dtd 05.02.2016 and 23.12.2015 of Hon'ble Gujarat Value Added Tax Tribunal at Ahmedabad in Second Appeal No. 965 to 967 of 2015 as well as order dated 25.11.2013 passed by Respondent no. 3 above named in Appeal No. 2013- 14/GST/146/B-447/11-12 and be pleased to direct that the appeal may be restored before Respondent No.03 and petitioner may be afforded opportunity to contest the appeal on merits and thereafter Respondent no.03 may decide the appeal in accordance with law. D Your Lordships may be pleased to grant an ex-parte, ad interim order in favour of the petitioner herein in terms of prayer clause 'C' hereinabove; E Your Lordships may be pleased to grant such other and further relief/(s) that may be deemed fit and proper in the interest of justice in favour of the petitioner.” 4. The writ applicant is a Proprietorship Firm, doing its business at Ahmedabad. In the year of 2005, following an investigation conducted by the Sales Tax Department, some of the documents were seized and on the basis of details with regard to business of the writ applicant, the Assessing Authority had fixed the tax liability for the Assessment Year 1.4.2004 to 31.03.2005 under the provisions of Gujarat Sales Tax Act, 1969 and for the year 2005-06 under the provisions of Gujarat Sales Tax Act, 1969 as well as Central Sales Tax Page 2 of 5

C/SCA/1743/2021 ORDER Act, 1956. 5. Being aggrieved with the three different assessment orders passed by the Competent Authority dated 28.03.2013, the writ applicant had filed three different Tax Appeals before the Deputy Commissioner of Commercial Tax, Division-1, Ahmedabad. The First Appellate Authority vide order dated 25.11.2013 was pleased to dismiss all three appeals summarily on the ground that the writ applicant failed to make payment of Rs.7 lakhs for the A.Y. 2004-05 and Rs.5 lakhs for the A.Y. 2005-06 respectively as amount of pre- deposit within stipulated time. 6. Being aggrieved by the order of summarily dismissal of the appeals by the First Appellate Authority, the writ applicant had preferred Second Appeal Nos. 965 of 2015, 966 of 2015 and 967 of 2015 before the Gujarat Value Added Tax Tribunal. The Tribunal by its common order dated 05.02.2016 dismissed all the three appeals summarily holding that the writ applicant failed to comply with the direction to make payment of Rs.7 lakhs and Rs.5 lakhs as pre-deposit fixed by the First Appellate Authority. However, the Tribunal had granted the liberty to the writ applicant to apply for restoration of the appeal subject to payment of Rs.12 lakhs within 30 days. 7. In the aforesaid circumstances, the writ applicant has come up before this Court with the aforesaid reliefs, as indicated above. 8. We have heard Mr. D.K. Trivedi, the learned counsel for the writ applicant. He would submit that both the appellate Page 3 of 5

C/SCA/1743/2021 ORDER authority have dismissed the appeals on the ground of non- payment of pre-deposit amount of Rs.12 lakhs. In this regard, Mr. Trivedi would submit that due to slake in the business and poor financial condition, the writ applicant could not be able to deposit the amount of pre-deposit. Mr. Trivedi, however, fairly stated that the writ applicant has deposited Rs.7,57,000/- and for the remaining amount, the writ applicant will deposit the same within 8 weeks from today. 9. We have also heard Mr. Chintan Dave, the learned AGP for the State-respondents. 10. After considering the facts and circumstances of the case, it appears that the Assessment Orders for the respective years were challenged before the First Appellate Authority and Tribunal, as referred to above. However, all the appeals having been dismissed only the ground of non- payment of pre-deposit amount and accordingly, without entering into the merits of the case, the appeals were dismissed summarily. 11. In the circumstances referred to above, we are of the view that the appeals filed before the First Appellate Court must be heard on merits, more particularly, out of Rs.12 lakhs, the substantial amount of pre-deposit of Rs.7,43,000/- is already deposited on different dates before the concerned authorities. We also take into consideration the statement made at the bar by learned advocate Mr. Trivedi that writ applicant will deposit the remaining amount of Rs.4,33,000/- within a period of 8 weeks from today. Page 4 of 5

C/SCA/1743/2021 ORDER 12. In the result, the common order dated 05.02.2016 passed by the Gujarat Value Added Tax Tribunal in Tax Appeal Nos. 965 to 967 of 2020 and the order dated 25.11.2013 passed by the First Appellate Authority in Appeal No. 447/11-12, 448/11-12 and 449/11-12 are hereby quashed and aside and matters are remitted back to First Appellate Authority to decide all appeals ( Appeal No. 447 to 449/11-12) afresh and restore the same on the original file and decide the same on merits in accordance with law subject to satisfaction of authority on full payment of pre- deposit amount by the writ applicant. The writ applicant is directed to deposit an amount of Rs.4,33,000/- (Rs. Four Lakh Thirty Three thousand only) before the concerned authority within 8 weeks from the date of receipt of this order. The First Appellate Authority shall proceed with the appeals only after arriving to the satisfaction with regard to deposition of pre-deposit amount. 13. In view of aforesaid, all the Special Civil Applications are disposed of. However, there shall be no order as to costs. (J. B. PARDIWALA, J) (ILESH J. VORA,J) P.S. JOSH Page 5 of 5