2016 (8) TMI 176

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....titioner, a registered dealer under the DVAT Act, states that it has been paying taxes at the time of purchase of the phones and claims the tax paid as input tax credit in terms of Section 9(1) of the DVAT Act. 4. It is stated that in the first three quarters of 2013-14 in the return filed by the Petitioner, the excess tax credit, which stood accrued was carried forward to the next tax period in terms of Section 11 (2) (b) of the DVAT Act. After the amendment to Section 11(2) of the DVAT Act with effect from 12th September 2013, the credit earned for the fourth quarter of 201314 could not be carried forward to the next tax period. Therefore, in the return filed for the fourth quarter of 2013-14 on 25th April 2014 a refund of Rs. 68,83,331/- was claimed, which on a revised return filed by the Petitioner got reduced to Rs. 53,81,316/-. 5. The Petitioner states that it was pursuing its refund claim. On 27th May 2016 a survey operation was undertaken by the officials of the DT&T in the premises of the Petitioner which, according to the Petitioner, was in contravention of Sections 59 and 60 of the DVAT Act.  Meanwhile, on account of the failure of the DT&T to issue the ref....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....invoke Section 39  of the Act, that action again has to be taken within the time  frame in Section 38(3) of the DVAT act." 8. Further in para 18 of the decision in Prime Papers and Packers vs. Commissioner of VAT (supra), this Court noted as under: "18. The Court is constrained to observe that there have been a large number of petitions filed in this Court by dealers awaiting the processing of their refund claims. Despite numerous judgments of this Court and circulars issued by the Commissioner VAT, including Circular No. 6 of 2005 and recently the Order dated 21st July 2016, the problem of delayed refunds persists. The frequent transfers of VATOs and the lack of any orientation and training as regards their statutory responsibilities cannot constitute a valid justification for delaying the refunds due to the dealers. The Court would urge the Commissioner VAT to review the issue of grant of refunds on priority basis so that the process is streamlined and his instructions regarding speedy disposal of refunds is strictly followed. He must initiate disciplinary action against those officers of the DT&T who are found disobeying the instructions issued by the Commissione....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....prescribed form of the delegation of these powers when exercising the powers". Therefore, there had to be a DVAT-50 in the name of the AVATO, Ward-64 which permitted him to exercise powers under Section 59 of the DVAT Act and to proceed to make any assessment thereafter. 13. The Petitioner states that the Petitioner was not shown DVAT-50 despite request. Mr. Rajesh Jain, learned counsel for the Petitioner, drew the attention of the Court to the order sheet penned by the AVATO on 1st July 2016, where he states "the counsel has requested to provide the DVAT-50 but the same is not available". This itself should have been a sufficient reason for the AVATO not to have further proceeded in the matter as he should have been aware of the legal requirement spelt out in Section 68 (2) of the DVAT Act.  Unfortunately, it appears that the AVATO persisted with the matter. 14. On 2nd July, 2016 the AVATO recorded the following order: "Sh. Virag Tiwari, Counsel of M/s Teleworld Mobiles Pvt. Ltd. was (sic) appeared on 01.7.20 16 in Assessment case for the year 2012-13 to 2016-17 (till 27.5.2016). He has requested for adjournment of the case sine a die till documents received from vis....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ted that in view of the demands created and the penalties imposed, no refund is due to the Petitioner. 18. The notices of default assessments of tax and interest and penalty bristle with numerous illegalities. First, as already noticed instead of processing refunds within the time granted under Section 38 of the DVAT Act, the AVATO compounded the problem by seeking to re-open the assessments for the earlier years including the period for which the refund was claimed using the order passed by this Court recording the assurance of the learned counsel for the respondent on 3rd June, 2016 in WP(C) 5584/2016 as a trigger. This is totally contrary to the law explained in several judgments which have been referred to hereinabove. 19. Secondly, with the AVATO himself acknowledging that the authority in DVAT-50 was not available, there was no question of him proceeding further in the matter and issuing notices of default assessments of tax, interest and penalty in the manner that he has done. 20. Thirdly, in an obvious violation of the principles of natural justice, with the AVATO by not informing the Petitioner of the adjourned date of hearing when he failed to attend office on 5t....