FUTURA CERAMICS (P.) LTD. Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BY way of this petition under article 226 of the Constitution of India, petitioner has prayed for an appropriate writ, direction and order quashing and setting aside the show -cause notice dated 12.03.2012 [Annexure C to the petition] as well as the impugned order dated 31.03.2012 passed by the Assistant Commercial Tax Commissioner -(2), Nadiad by which an order of reassessment has been passed by the Commercial Tax Officer directing the petitioner to pay an amount of Rs. 78,39,802/ - towards the balance tax under the Gujarat Value Added Tax Act, 2003 [hereinafter referred to as "VAT Act"]. Facts leading to the present special civil application in nut -shell are as follows:

(2.) SHRI Parikh, learned counsel appearing on behalf of the petitioner has heavily relied upon the decision of this Court in the case of Futura Ceramics (P.) Ltd. v. State of Gujarat : (2013) 40 taxmann 404/42 GST 590 (Guj.) and relying upon the said decision, it is submitted that similar reassessment order passed by the AO solely on the basis of the show -cause notice issued by the Excise Department has been set aside by this Court. Therefore, it is requested to quash and set aside the impugned order passed by the AO.

(3.) HAVING heard Shri Parikh, learned counsel appearing on behalf of the petitioner and Shri Gandhi, learned AGP appearing on behalf of the respondents and having gone through the impugned order passed by the AO, it appears that the reassessment order has been passed by the AO solely on the basis of show -cause notice issued by the Excise Department. It can be seen that the assessment which was previously concluded was reopened on the premise that during the excise raid, it was revealed that the petitioner had clandestinely removed goods without payment of excise duty. The Sales Tax Department, therefore, formed a belief that value of the goods + excise duty evaded and formed part of turnover of the assessee for the purpose of tax under the VAT Act. Identical question came to be considered by this Court in the case of Futura Ceramics (P.) Ltd. (supra) and a similar reassessment order which was passed on the basis of the show -cause notice issued by the Excise Department has been set aside by the Division Bench of this Court by observing as under: