Hon'ble Ritu Raj Awasthi, J.
Notice on behalf of respondents has been accepted by the learned Chief Standing Counsel.
We have heard Sri Bharat Ji Agarwal and Sri S.M.K. Chaudhary, learned Senior Advocates, assisted by Sri Shubham Agarwal for the petitioner and Sri H.P. Srivastava, learned Additional Chief Standing Counsel for the State.
With the consent of the parties' counsel, the petition is being disposed of finally at the admission stage.
The petitioner's grievance is that on the plea of non deposit of certain tax, issuance of Form-38 has been refused by the assessing authority. The petitioner had moved an application before the Commissioner of Commercial Tax, for issuing direction to the assessing authority under Rule 4(6) of the U.P. Vat Rules on 29.9.2010, but the said application has not been considered till date.
The grouse is that because of inaction on the part of the Commissioner and unlawful attitude of the assessing authority, not only the petitioner's business is suffering, but the project of laying down the national highway has come to a stand still. Petitioner's submission is that it is not only against the provisions of the Act, but also against the national interest, as the cost of construction would be escalated and general public would also suffer for want of a good highway. He further says that the project is to be completed by 24.12.2010.
In support of his submission that the issuance of Form-38 cannot be withheld because of the alleged outstanding dues, which are disputed nor because the assessee is not cooperating in the assessment proceedings, learned counsel for the petitioner relies upon the judgement of this Court in the cases of M/s. Darshan Agroils Ltd, Aligarh vs. State of U.P. and another, 2006 UPTC 1403; M/s. Allahabad Wire Drawing Industries Pvt. Ltd. vs. Assistant Commissioner (Assessment) and others, (2005) 41 STR 592; and M/s. Maheshwari Brothers Ltd. vs. State of U.P. and others, STI 2005 Allahabad High Court 277.
Sri H.P. Srivastava, appearing for the State, in response, submitted that the petitioner has a right to move the application under Rule 4(6) of the U.P. Vat Rules before the Commissioner and, therefore, the Commissioner may be directed to decide the matter, but the writ petition at this stage is not maintainable. He further submitted that a show cause notice has already been issued to the petitioner by the assessing authority and, therefore, the petitioner may submit its reply to the show cause notice.
We have considered the aforesaid arguments, but in the absence of any provision under the Act or the Rules, the issuance of Form-38 cannot be stopped from being issued.
The judgments aforesaid consistently hold that the assessing authority cannot decline to issue Form-38 on the ground of outstanding dues or that the assessee is not cooperating in the assessment proceedings.
The same being the position here, we, dispose of the writ petition finally with the direction that the assessing authority shall issue Form-38, without prejudice to the assessment proceedings or realization of the demand, as may be finally determined by the authority concerned, without any delay forthwith.
In the meantime, the application moved by the petitioner under Rule 4(6) be decided by the Commissioner, say positively within a maximum period of two weeks, from the date of receipt of a certified copy of this order.
Dated: 12.10.2010 Sachin