TaxTMI 
TaxTMI 
2017 (4) TMI 831
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....as entitled for refund. It is stated that the Petitioner claimed refund in the return filed in July 2010. For the period since then till March 2012, according to the Petitioner, a aggregate refund of Rs. 4,06,24,323 was due to the Petitioner. It is stated that instead of granting the refund due to the Petitioner for the month of July 2010 the Value Added Tax Officer ('VATO') framed a default assessment of tax, interest and penalty under Sections 32 and 33 of the Delhi Value Added Tax Act, 2004 ('DVAT Act'). The Petitioner then filed objections under Section 74 of the DVAT Act before the Objection Hearing Authority ('OHA'). 3. By an order dated 14th October 2016 Special Commissioner-II/OHA upheld the objections and set aside the impugned order of the Value Added Tax Officer ('VATO'). Paras 8 and 9 of the said order, which set out the entire context in which the objections of the Petitioner were sustained read as under: "8. I have gone through the records and documents placed on the file and have heard the both Shri Goel, the learned counsel of the objector as well as Shri Vikas Gupta, the DR in the matter at length. During hearing of the case, comments of the Ward In-charge with r....
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....y specific reason or prohibition by CST Act or Rules, legitimate transactions of the dealer duly supported with relevant records/documents cannot be denied. Therefore, the impugned order passed by the learned AA cannot be upheld and liable to be set aside. Accordingly, the objection is accepted and the impugned order is set aside. Further, in the interest of justice, the Objector is given one more opportunity to appear before the learned Assessing Authority and to produce the relevant documents in support of his refund claimed. The learned AA is directed to consider the refund claim of the Objector afresh after giving reasonable opportunity of the dealer to be confronted with proper examination of the evidentiary documents/records produced or required to be produced as per rule and facts of the case." 4. The matter should have normally come to an end with the above order dated 14th October 2016 and the Petitioner ought to have been issued the refund. In this context, it requires to be noticed that Section 38 of the DVAT Act provides that in the case of a monthly return, refund is to be allowed within one month from the date of filing the return and in any other case the refund is ....
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.... to VATO (Refund) in the Collection Branch, who shall complete data of refund orders received from different wards in a floppy on daily basis for onward transmission to RBI and the third copy shall be retained by the ward VATO. In case the amount lesser than the amount of refund claimed by the dealer is allowed by the VATO in Operation Wing as refund payable for the reasons other than the reason of set off/adjustment, a covering letter shall be attached with the dealers copy of DVAT-22 explaining the reasons of such reduction and the covering letter as well as dealers copy of DVAT-22 shall be sent to the dealer." 6. With there being utter laxity on the part of the DT&T in processing the Petitioner's claim for refund, the Petitioner filed Writ Petition (Civil) No.1541 of 2017 in this Court. On 20th February 2017 the following order was passed: "WP (C) 1541/2017 Issue notice to the Respondents. Mr. Anuj Aggarwal, Advocate accepts notice for the Respondents. It is stated by learned counsel for the Respondents that they will obtain instructions and in case the amounts are not refunded, the Respondents shall indicate by what dates the Petitioner would be refunded the amounts - throu....
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....ect of the refund claimed for Rs. 12,55,471 for the second quarter of AY 2010-11. The file further reports that the query which has led to the notice, i.e., "whether the dealer is allowed to make inter-state sale, i.e., to registered dealers of other States Haryana, Punjab and Himachal Pradesh, and the fact that the Assessing Authority failed to take the issue further with authorities of BPCL to clarify the ambiguity". It is stated by the counsel for the Respondents that another writ petition, i.e., WP (C) 2282 of 2017 was preferred by the present Petitioner, in which, on 10th March 2017, the show cause notice dated 17th February 2017 and further proceedings emanating therefrom have been stayed. That writ petition is now listed on 12th April 2017. It is quite evident from the above discussion that only impediment which the Revenue/DVAT has put forward to withhold the Petitioner's claim for the larger sum of over Rs. 4 crores is the fresh show cause notice under Section 74A issued on 17th February 2017. Considering the circumstances, this Court is of the opinion that the Respondents should, while processing the Petitioner's claim for refund of Rs. 4 crores, keep aside the amount of....
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....he case including the fact of all C Forms and GRs were verified from the concerned states and transporters and found to be genuine. It also notes that the OHA observed that since the Objector has in his possession all the records including C forms and the proof of dispatch of goods, transactions of the dealer cannot be denied. It also notes that the OHA observed that "even if the agreement between BPCL and Garg Roadlines prohibited him from effecting central sales, without having any specific reason or prohibition by CST Act or Rules, legitimate transaction of the dealer duly supported with relevant records/documents cannot be denied." The note ends with the following paragraph: "The case of revision arises because of the reply of the HPCL, i.e., which says that M/s. Garg Roadlines is authorized to sale MS/HSD to all the customers coming to the RO premises for purchase of the same through Nozzle. Although there is no dispute that the sale is interstate sale." 13. The above note which was supposed to be considered by the Commissioner is not referred to in the noting part of the file. The noting part is from pages 1/N up to 14/N. What is relevant for the present purpose is that fro....
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.... there are no reasons penned by the Commissioner, VAT on the file justifying the invocation of the revisionary power under Section 74A of the DVAT Act, the above unsigned note titled 'Revision of orders of M/s. Garg Roadlines', which forms part of the main file is not even referred to. Even the note prepared by the Joint Commissioner (JC) (Zone-VI) makes no reference to the said note. It gives no justifiable reason for invoking the revisionary power under Section 74 A of the DVAT Act. Even the reasons why the order of the OHA is unacceptable to the DT&T are absent. As noticed earlier, the impugned notice (undated and unsigned) uploaded on the Petitioner's web id proposing the exercise of the revisionary power under Section 74 A DVAT Act is equally vague and without any reasons. 16. There is also no application of mind to the consequences of the decision to invoke the revisionary power under Section 74 A DVAT Act. go in for revision. For instance, the note by the JC fails to note that under Section 38 of the DVAT Act the Department was bound to process the refund application, which in this case was pending since July 2010, within one month from the date of the filing of the....