SCA/30842/2007 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 30842 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE D.A.MEHTA HONOURABLE MR.JUSTICE Z.K.SAIYED ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== SOMNATH STEEL AND PRINTERS THROUGH RAJENDRA M RATHOD & 1 - Petitioner(s) Versus COMMISSIONER OF SALES TAX & 2 - Respondent(s) ============================================= Appearance : MR NK MAJMUDAR for Petitioner(s) : 1 - 2. MR UR BHATT, AGP. for Respondent(s) : 1 - 3. ====================================== CORAM : HONOURABLE MR.JUSTICE D.A.MEHTA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 22/01/2008 SCA/30842/2007 2/6 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE D.A.MEHTA) 1 Taking into consideration the narrow scope of the controversy, the petition is taken up for final hearing and disposal today. Rule. Learned Assistant Government Pleader appearing on behalf of the respondent authorities is directed to waive service. 2 The petition has been preferred with the following prayers: “[8] The petitioners, therefore, pray that :- (A) THIS HONOURABLE COURT be pleased to admit the present petition; (B) THIS HONOURABLE COURT be pleased to issue appropriate writ, order or direction and be further pleased to quash and set aside the illegal, illogical, arbitrary and discriminatory action/s of the concerned respondent authority of passing order dated 20th December, 2007 in respect of seizure of the records/registers/bill books/purchase register/sales registers as well as affecting attachment in respect of the bank account being No. 1372320005096 of the petitioner no.1 firm with the HDFC Bank Limited at Bhavnagar be quashed and set aside in the interest of justice; SCA/30842/2007 3/6 JUDGMENT (C) THIS HONOURABLE COURT be pleased to issue appropriate writ, order or direction and be further pleased to hold that the concerned respondent authority have no right and/or authority to pass the impugned order dated 20th December, 2007 and as well as to affect the attachment in respect of the bank account being No.1372320005096 of the petitioner no.1 firm with the HDFC Bank Limited at Bhavnagar as well as seizure of the registers/records of the petitioner no.1 firm, more particularly, when the hearing was kept on 28th December, 2007 and, therefore, this Honourable Court be pleased to hold that without there being any final assessment, without completion of procedure relating to the provisional assessment and without conclusion of the hearing on 28th December, 2007, the concerned respondent authority have no right and /or authority to affect the seizure of the registers/records of the petitioners and to affect attachment of the bank account of the petitioner no.1 firm, as stated above, as per the order dated 20th December, 2007 and, therefore, the said action and the order dated 20th December, 2007 passed by the concerned respondent authority be quashed and set aside”. 3 However, the learned Advocate for the petitioner has restricted his submission to the order of attachment in respect of Bank Account No.1372320005096 with HDFC Bank Ltd., SCA/30842/2007 4/6 JUDGMENT Bhavnagar on the ground that the said order of attachment of bank account has never been served on the petitioner firm and hence the entire exercise is bad in law. 4 The facts reveal that provisional assessment in case of the petitioner firm is in process and the next hearing is fixed on 24.01.2008. However, the respondent authorities appear to have formed an opinion that there is a likelihood of demand to the extent of Rs. 34,15,874/- plus interest for F.Y.2006-07 upon completion of the assessment and to protect such demand that may arise in future, the respondent authority, acting under the provisions of Sections 45(1) and 45(2) of the Gujarat Value Added Tax Act, 2003, made an order on 20.12.2007 attaching the aforestated bank account of the petitioner firm. But, admittedly the said order has not been served on the petitioner firm as accepted by learned Assistant Government Pleader, under instructions of Mr. S.S.Bhaskar, Commercial Tax Officer (I), Unit 2, Bhavnagar, who is personally present in the Court. 5 In the aforesaid fact situation, it is apparent that the petitioner firm cannot be visited with consequences, which would be of serious nature, which flow from attachment of a bank account without being served a copy of the order of SCA/30842/2007 5/6 JUDGMENT attachment. The petition is required to be allowed only on this limited count. 6 The question that would then survive is what should be the relief which should be granted to the petitioner in the circumstances. On 15.01.2008 Court made the following order: “ In view of the above statements and submissions, we adjourn the hearing of this petition to 21st January 2008 with a clarification that in case the petitioner deposits any cheques issued by other parties in favour of the petitioner, the concerned bank being HDFC Bank shall accept such cheques for deposit and the order for attachment of the bank account passed by the concerned authority shall operate only against withdrawal/disbursement of any amount from out of the bank account attached by the authority.” 7 The learned AGP. has made a further statement, under instructions, that copy of the order of attachment dated 20.12.2007 shall be served upon the partner of the petitioner firm during course of the day but not later than 24 hrs. from this point of time i.e. 12.00 Noon of 23.01.2008. In the circumstances aforestated interim arrangement directed by the Court vide order dated 15.01.2008 shall continue to operate SCA/30842/2007 6/6 JUDGMENT till 12.00Noon of 23.01.2008 8 In light of what is stated hereinbefore the petition is allowed to the aforesaid extent. Rule made absolute accordingly. There shall be no order as to costs. (D.A. Mehta, J.) (Z.K. Saiyed, J.) M.M.BHATT