- (1.) By means of the present writ petition the petitioner has sought a writ, order or direction in the nature of certiorari quashing the order dated August 18, 2011 passed by the Assistant Commissioner, Commercial Taxes, Ghazipur, respondent No. 2 filed as annexure No. 9 to the writ petition and other consequential reliefs. Briefly stated that the facts giving rise to the present petition are as follows: The petitioner is a proprietorship concern and is engaged in the business of trading of iron rods, angles, bars and other allied products of iron. It is registered under the provisions of the U.P. Value Added Tax Act, 2008, hereinafter referred to as, "the Act". According to the petitioner it is paying due taxes under the Act. During the assessment year 2009-10 the petitioner filed its monthly return in the prescribed form. A survey was conducted by the Special Investigation Branch, Unit II, Varanasi, in the assessment year 2009-10 in which suppressed turnover was assessed at Rs. 75,00,000 and a sum of Rs. 3,00,000 was imposed as tax. The matter is pending in appeal before the Tribunal in which a stay order has also been passed. The petitioner has complied with the terms of the stay order passed by the Tribunal. Another survey was made by the Special Investigation Branch, Unit II, Varanasi on July 15, 2011 in which regular books of accounts were not found in the business premises of the petitioner and three loose papers were seized. The proceedings before the Special Investigation Branch were initiated. In the meantime relying upon the circular/directive issued by the headquarters proceedings for cancellation of the registration certificate have been initiated by respondent No. 2 by issuance of a notice dated August 8, 2011 calling upon the petitioner to show cause as to why the registration be not cancelled as it was indulging in evasion of tax and is not cooperating in the proceedings before the Special Investigation Branch. The petitioner appeared through its representative and submitted that the proceedings before Special Investigation Branch are still going on and the instant proceedings be deferred. The request was not accepted and respondent No. 2 by the order dated August 18, 2011 had cancelled the registration certificate on the ground that in the survey conducted by the Special Investigation Branch on July 15, 2011 regular books of accounts have not been found in the business premises and three loose papers have been seized which shows that the petitioner is indulging in tax evasion. The order dated August 18, 2011 is under challenge in the present writ petition.
(2.) While entertaining the writ petition, this court vide order dated September 14, 2011 had passed the following order: Shri S.P. Kesarwani, Additional Chief Standing Counsel, has accepted notice on behalf of all the respondents. He prays for and is allowed three weeks' time to file counter-affidavit. The petitioner will have one week thereafter to file rejoinder affidavit. List on October 18, 2011. It is submitted by Shri Aloke Kumar, learned counsel for the petitioner that for the year 2009-10 the petitioner was assessed under the U.P. Value Added Tax Act against which he has filed an appeal in which an interim order was passed. A survey was made by the SIB on July 15, 2011, in which it is alleged that the petitioner did not produce the account books. He was served with the notice dated July 27, 2011 to appear on August 12, 2011. A reply was given by the petitioner on August 11, 2011, in which it was alleged that he is appearing before the SIB, and that until the proceedings before the SIB are concluded, the order of suspension of registration and the proceedings for cancellation be stayed. The Assistant Commissioner, Commercial Tax (Registration Cell), Ghazipur, has found that both the proceedings are separate, but that taking the grounds of non-appearance and non-cooperation before the SIB, he has cancelled the registration for the reason, that during the survey the regular account books were not found and three doubtful used parchas were found. We prima facie find that though the petitioner has a right to appeal under section 55 of the Act, the action taken by the respondents in cancelling the registration, by which the petitioner has been stopped from doing business, is not supported by cogent reasons. The non-cooperation of the petitioner before the SIB; the findings that account books were not properly maintained and three doubtful parchas, could not be a ground to cancel the registration, specially when the proceedings in pursuance of material found during search are still pending, and no final opinion has been expressed on it, by the Department. Until further orders the effect and operation of the impugned order dated August 18, 2011 passed by respondent No. 2 cancelling the petitioner's registration shall remain stayed.
(3.) Affidavits have been exchanged between the parties. With the consent of the learned counsel for the parties, the writ petition is being finally decided at the admission stage in accordance with the Rules of the court.;