NEUTRAL CITATION
C/SCA/4775/2019 JUDGMENT DATED: 04/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4775 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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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 or any order made thereunder ?
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RAJESHKUMAR ARJANBHAI VEKARIYA
Versus
DY. COMMISSIONER OF INCOME TAX 4(3)(1)
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Appearance:
MR. HARDIK V VORA(7123) for the Petitioner(s) No. 1
MR. NIKUNT RAVAL, ADVOCATE FOR MRS KALPANA K RAVAL(1046) for
the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 04/09/2023
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV) Page 1 of 4 Downloaded on : Sat Sep 16 15:54:20 IST 2023 NEUTRAL CITATION C/SCA/4775/2019 JUDGMENT DATED: 04/09/2023 undefined 1 Rule returnable forthwith. Mr.Nikunt Raval, learned counsel appearing for Mrs. Kalpana Raval, learned advocate for the respondent, waives service of notice of rule for and on behalf of the respondent. With consent of the learned advocates appearing for the respective parties, the matter is taken up for final hearing today. 2 By way of this petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 30.11.2018, passed under Section 179 of the Income Tax Act, 1961, for recovering the tax dues of M/s.Raj International Limited for the Assessment Years 2008-09, 2010-11, 2011-12 and 2012-13. 3 Several arguments have been raised by the learned counsel for the petitioner. Essentially, it is the case of the petitioner that the order dated 30.11.2018 was passed without due service of notice to the petitioner and hence essentially it is an ex-parte order. Page 2 of 4 Downloaded on : Sat Sep 16 15:54:20 IST 2023
NEUTRAL CITATION C/SCA/4775/2019 JUDGMENT DATED: 04/09/2023 undefined 3.1 In support of his submission, Mr.Hardik Vora, learned counsel for the petitioner, during the course of hearing has submitted an affidavit on one Dr.Ashwin Ramjibhai Vekaria. The affidavit reads as under:
"01. I am residing at flat no. 3-C/D, Ashwini Apartment, Sumul Dairy Road, Surat since 1999. Shri Rajesh Vekaria, who is my cousin was also residing with me in the same flat. Later in the year 2007, he shifted to flat no. 8-C in the same building and in 2009 he shifted to flat no 1102, Manibhadra Apartment, Parle Point, Surat.
02. Some post (envelope) was received in his name at the above address in October 2018, which was kept by my wife but for the Navratri festival and deepawali period, the post could not be sent to Shri Rajesh Bhai. Later one more post was received in December 2018. This post reminded of the earlier post also and both these posts were sent to Shri Rajesh bhai at his office, in 7-8 days of the receipt of the second post."
4 Perusal of the affidavit would indicate that when a notice was issued to the petitioner, he was not residing at the address during such notice. Apparently therefore, the order impunged herein was passed in violation of principles of natural justice.
5 Only on this ground, the order dated 30.11.2018 is Page 3 of 4 Downloaded on : Sat Sep 16 15:54:20 IST 2023 NEUTRAL CITATION C/SCA/4775/2019 JUDGMENT DATED: 04/09/2023 undefined hereby quashed and set aside. However, liberty is reserved in favour of the respondents to issue fresh notice to the petitioner for proceeding under Sec.179 of the Act, in accordance with law. The petition is allowed to the aforesaid extent. Rule is made absolute accordingly.
(BIREN VAISHNAV, J) (BHARGAV D. KARIA, J) BIMAL Page 4 of 4 Downloaded on : Sat Sep 16 15:54:20 IST 2023