HAMDARD (WAKF) LABORATORIES Vs. STATE OF U.P.

JUDGEMENT

(1.) By means of the present writ petition the petitioner seeks a writ, order or direction in the nature of certiorari quashing the order of attachment of bank account dated 28th August, 2010 passed by the Assistant Collector (Recovery), Grade-1, Commercial Tax Department, Ghaziabad, respondent No. 4, filed as Annexure No. 6 to the writ petition and also a writ of mandamus directing the respondent authorities to refund the amount of Rs. 2,14,53,892/- recovered from the bank account of the petitioner at Bank of India, Hamdard Dawakhana Branch, 1545, Gali Qasimjan, Bazar Lal Kuan, Delhi 110006 and other consequential relief's. Briefly stated the facts giving rise to present petition are as follows:-

(2.) The petitioner is a Wakf Board and is engaged in the business of manufacture of Unani medicines and Sharbat Rooh Afza and sells its product within the State of U. P inter state sales and also transfers goods outside the State of U. P. by way of stock transfer. It is carrying on its manufacturing activities in the State of U. P. and it is a registered dealer under the provisions of U. P. VAT Act, 2008 and prior to it under the provisions of U. P. Sales Tax Act, 1948 which Act was subsequently amended as U. P. Trade Tax Act, 1948.

(3.) According to the petitioner on 29th August, 2009, it was served with a show cause notice under Section 25(1) of the U. P. VAT Act in which the Sharbat Rooh Afza was proposed to be assessed provisionally @ 12.5% under residuary category. Notices were issued involving the Assessment Years 2008-09 and 2009-10. The petitioner submitted its reply in which objections both on jurisdiction and merits were taken. The provisional Assessment Orders were passed by the Joint Commissioner-Assessment (Corporate Circle). The submission made by the petitioner regarding taxability on Sharbat Rooh Afza @ 4% was not accepted and in the provisional assessment tax was levied @ 12.5%. Feeling aggrieved the petitioner preferred an appeal before the Additional Commissioner (Appeals) along with an application for stay. The Additional Commissioner (Appeals) was pleased to grant stay of 60% of the disputed amount of tax whereupon the petitioner took the matter further in appeal before the Trade Tax Tribunal, Ghaziabad. The Tribunal vide order dated 1st February, 2010 granted 80% stay of the disputed amount of tax for four months or till the disposal of appeal whichever was earlier. The Tribunal vide order dated 2nd August, 2010 extended the stay order till disposal of appeal. The Additional Commissioner (Appeals) vide order dated 28th August, 2010 had rejected the petitioner's appeal. On 28th August, 2010 itself the Assistant Collector (Recovery), respondent No. 4, issued an order for recovery of amount which was earlier stayed by the Tribunal. The recovery was pressed by attachment of the bank account of the petitioner with the Bank of India, Delhi. The petitioner came to know about the order of dismissal of the appeal when the bank authorities communicated the order of attachment on 30th August, 2010. The petitioner was served with a copy of the order dismissing the appeal on 30th August, 2010. It may be mentioned here that 29th August, 2010 was a Sunday. However, before the petitioner could take any further step for filing an appeal before the Tribunal and getting the demand stayed, respondent nos. 3 and 4 got a demand draft/pay order of Rs. 2,14,53,893/- prepared from the bank and adjusted the demand raised by the provisional assessment order. The action of the respondent-authorities in acting in haste for recovering the amount of Rs. 2,14,53,892/- by coercive process is under challenge in the present writ petition.