TaxTMI 
TaxTMI 
2016 (5) TMI 77
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....produced along with copies of the Joint Venture Agreement, Contract Agreement, Audited Balance Sheets and details of TDS certificate covering the amount of tax deducted and deposited by Delhi Metro Rail Corporation ("DMRC"). 3. On the basis of the above order, the Petitioner filed an application for refund on 2nd March 2005 in form ST-21 in accordance with Rule 29 of the Delhi Sales Tax Rules, 1975 ("DST Rules") read with Section 30 (1) of the Delhi Sales Tax Act, 1975 ("DST Act") as was made applicable to the DSTWC Act. 4. The Petitioner states that it kept following up on its refund application through several letters addressed to the Assessing Authority between 24th June 2005 and 29th May 2007. It also sent reminders to the Commissioner. It is stated that on 12th January 2007, the Inspector of the Sales Tax Department verified the TDS challans and also submitted his report. 5. However, the Assessing Authority issued a notice for re-assessment in form ST-15 (WC) under Section 24 of the DST Act on 5th July 2007. The said notice stated that deductions had been claimed wrongly by the Petitioner and hence the turnover escaped assessment to tax under Rule 5 of the Delhi Sales....
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....years from the date of final order of assessment would apply." 10. The Court further held that since the assessment itself has become time barred it would not be permissible for the Assessing Officer ("AO") to now proceed on the basis of the notice dated 5th July 2007 and pass reassessment orders. It was, therefore, not necessary to examine the other issues that were raised in the writ petition. The sum of Rs. 1,78,58,291 which had become refundable as a result of the original assessment and which had already been deposited by the Respondent in this Court was asked to be released to the Petitioner along with interest accrued thereon. The Petitioner was directed to make a claim of interest for the past period with the Sales Tax Authorities. 11. With no appeal being filed against the above order by the Respondent, the above order has become final. Pursuant to the above order, the said sum of Rs. 1,78,58,291 together with interest accrued thereon was refunded to the Petitioner by the Respondent. Revisional power under the DVAT Act 12. Section 74A of the DVAT Act provides for powers of revision of the Commissioner. Section 74A (1) of DVAT Act states that the Commissioner ma....
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....was the "repeal and savings' provision. Section 106 (4) stated that notwithstanding anything contained in the DVAT Act, for the purpose of levy, assessment, deemed assessment, reassessment, appeal, revision, review etc. which relates to any period ending before 1st April 2005 "the repealed Act, and all rules, regulations, orders, notifications, forms and notices issued thereunder and in force immediately before 1st day of April 2005 shall continue to have effect as if this Act has not been passed." Impugned show cause notice 16. On 2nd February 2010 a show-cause notice ("SCN") was issued to the Petitioner by the Deputy Commissioner (Special Zone) in exercise of the powers under Section 16 of the DSTWC Act read with Section 46 of the DST Act and Notification No. F. 8(28)/93-PPR/13368-384 dated 12th September 1994 delegating the power of revision read with Section 106 (2) of the DVAT Act requiring the Petitioner to appear before the said officer with the books of accounts and other relevant record and to show cause as to why the said assessment order dated 24th February 2005 be not revised under Section 16 of the DSTWC Act read with Section 46 of the DST Act. 17. Inter a....
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....een effected on the Petitioner on or before 2nd March 2005. Therefore, the revisional order could have been passed within four years of 31st March 2005, i.e., upto 31st March 2009. Since the SCN has been issued only on 2nd February 2010, it was held to be barred by limitation. 21. In response to the plea that the entire Section 46 of the DST Act which provided that the final order that may be passed in exercise of the power of revision has to be passed within five years of the date of the order sought to be revised, the Court held that Section 46 of DST Act has been replaced by Section 74A of the DVAT Act qua the power of the revision and further that it is Section 74A which should be held to apply. Accordingly, the SCN dated 2nd February 2010 was quashed as being time barred. Review petition of the Department 22. Soon thereafter the Department filed Review Petition No. 420 of 2012 drawing the attention of the Court to Section 106 (4) of the DVAT Act which had been inserted with effect from 1st April 2005 and was not noticed by the Court in the above decision. 23. On 2nd May 2014 the Division Bench of this Court allowed the review petition after noticing Section 106 (4)....
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....propriate orders on the refund application within a period of 15 days. Soon after, the SCN under Section 46 of the DST Act was issued to International Metro Civil Contractors. This was challenged in the Writ Petition (Civil) No. 5828 of 2007 which came to be allowed by the aforementioned judgment in International Metro Civil Contractors (supra) and the said SCN was quashed. The SLP against the said order was disposed of by the Supreme Court on 31st March 2008 observing that the Commissioner "ought not to have interfered with the assessment order under Section 46 of the Delhi Sales Tax Act, 1975, particularly when the requirements of that section do not stand complied with." (d) Respondent No. 2, the Deputy Commissioner, had issued the impugned SCN without satisfying herself whether the requirements for issuing the SCN stand complied with. The SCN did not specify (a) which deductions have been wrongly allowed, (b) to what extent, (c) what are the relied upon documents to support the stand taken in the SCN and (d) which sub-rule of Rule 5 of DSTWC Rules has been violated etc. In other words, in the absence of any specific finding given and without adducing any document to su....
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....he above submissions on the merits of the impugned SCN dated 2nd February 2010 has been considered. As already noticed in the SCN itself, the only reason for invoking the revisional powers under Section 46 of the DST Act is contained in para 5 which simply states: "whereas it has come to the notice of the undersigned that in the assessment order for the year 2003-04 deductions have been wrongly allowed hence said order is erroneous and prejudicial to the interest of revenue." In other words, the language of Section 46 of the DST Act has been reproduced. The reasons fail to specify how the original assessment order is erroneous or prejudicial to the interests of the Revenue and in what manner deductions had been wrongly claimed and allowed to the Petitioner. 30. It is sought to be contended by Mr. Satyakam, learned Additional Standing counsel for the Respondent that the SCN does not itself have to set out all the grounds on which the revisional power has been exercised and that in any event the detailed reasons are available in the note prepared by the officer, a copy of which has been made available to the Petitioner. Consequently, it is submitted that the Petitioner could reply....
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....evision of orders prejudicial to revenue under Section 46 of the DST Act, 1975 ....." It was noted that "the instant case had been reopened vide notice dt. 5/07/07 under Section 24 of the Act for reassessment proceedings. The case could not be concluded because of Writ Petition No. 8526/2008." This is factually erroneous since it was pointed out by the Petitioner there was no stay order passed in Writ Petition No. 8526 of 2008 and therefore, nothing prevented the Department from passing the reassessment order. Nevertheless it was noted that the power of revision under Section 46 would have to be exercised by 23rd February 2010. The note concluded seeking advice whether an SLP should be filed or a revision of the assessment order dated 24th February 2005 under Section 46 of the DST Act be undertaken. 37. The above note was prepared by the Deputy Commissioner (Special Zone) on 6th January 2010. The photocopy of the said note together with further endorsement thereunder had been placed on record. The above note was marked to the Joint Commissioner (Law & Justice) who recorded in his own handwriting: "revision proceedings to safeguard the interest of Revenue may be initiated immedia....
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....the superior authority the entire proceedings would stand vitiated. 42. Reference was made by this Court in Sita Juneja & Associates v. CIT (supra) to the observations in Orient Paper Mills v. Union of India (supra) where the Supreme Court held that the assessing authorities as well as the appellate authorities are called upon to decide disputes "independently and impartially." They cannot be said to act independently if their judgment is controlled by the directions given by the others. "Then it is a misnomer to call their orders as their judgments, they would essentially be the judgments of the authority that gave the directions and which authority had given those judgments without hearing the aggrieved party." 43. It is evident in the instant case that in exercise of the power under Section 46 of the DST Act, the Deputy Commissioner did not bear in mind the previous history of the case where the Court had quashed the notice dated 5th July 2007 which sought to reopen the assessment for AY 2003-04 on the same ground viz., that the deductions had wrongly been allowed to the Petitioner. The Court is, therefore, satisfied that in the present case the invoking of the revisional ....