TaxTMI 
TaxTMI 
2019 (7) TMI 1341
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....ct'). 3. The Petitioner had filed a return for the first quarter of 2017-2018 on 11th July, 2017 claiming the refund of Rs. 2,94,55,403/-. On 14th September, 2017 the Petitioner submitted eight 'C' forms and seven 'H' forms in original along with the GRs, Bill of Lading and other documents against the sales made under Sections 8(1) and 5(3) of the CST Act. 4. When the refund was not granted within two months as mandated by Section 38 (3) (a) (ii) of the DVAT Act, the Petitioner filed WP(C) No. 8283/2017 in this Court. On 18th September, 2017 the said writ petition was disposed of by this Court directing the DT & T to process the Petitioner's refund within four weeks and to credit the refund along with interest directly to the Petitioner's account within two weeks. 5. The Petitioner states that on 25th October, 2017 the Value Added Tax Officer (VATO), Ward 17 issued a default notice for assessment of tax and interest under the CST Act specifically relating to the first quarter of 2017-18. In the said order he acknowledged that 'C' forms for Rs. 30,95,51,062/- had been filed. He accordingly made an assessment of Nil demand. 6. On 8th November, 2017 the VATO sent a further letter ....
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....ection to the OHA to permit cross-examination of the desired persons as had been mentioned in the Petitioner's letter dated 12th March, 2018. The said writ petition was disposed of by this Court on 13th April, 2018 with the direction that the proceedings before the Special Commissioner would continue. The Petitioner was permitted to file written submissions. The period of six weeks granted earlier was extended by another six weeks within which time the OHA was directed to consider the Petitioner's objections and contentions including the summoning of the orders from the authorities in the State of Rajasthan and Haryana for which a specific request was made by the Petitioner and to pass a speaking order. 11. On 17th May, 2018 the OHA passed an order rejecting the objections without summoning the records or allowing cross-examination of the persons and without dealing with the Petitioner's written submissions placed on record. Aggrieved by the order dated 17th May, 2018 of the OHA the Petitioner filed WP(C) No. 7538/2018 which was disposed of on 28th September, 2018 by this Court setting aside the order of the OHA. The said order requires to be reproduced in full as under: "The pe....
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....s cancelled stood withdrawn. He also mentioned that the said C-forms should be considered as declarations and in compliance of Section 8(4) of the CST Act. 14. The Petitioner states that when no hearing took place even after the expiry of three months from the date of the order passed by this Court i.e. 28th September, 2018, the Petitioner's counsel on 3rd January, 2019 visited the office of the OHA to serve DVAT-41 in relation to the objection dated 13th March, 2018 pending with the OHA. It is stated that the OHA asked the counsel to come again on 4th January, 2019. On 3rd January, 2019 itself the OHA issued a notice for hearing on 8th January, 2019 concerning the objections of first quarter of 2017-18 with reference to this Court's order dated 28th September, 2018. 15. It is stated by the Petitioner that despite two visits to the office of the OHA on 4th January, 2019, service of the DVAT-41 could not be effected. Left with no option, the counsel served notice in form DVAT-41 in terms of Rule 56 of the Delhi Value Added Tax Rules, 2005 (DVAT Rules) in person on the Commissioner in terms of Section 74 (8) of the DVAT Act. The text of the letter so served by the counsel for the P....
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....d with Section 9 (2) of the CST Act. 19. It must be noted at this juncture that notice was issued in this petition on 11th February 2019. On that date the Court directed that till the next date of hearing, the OHA would not pass a final order on the objections. On the next date i.e. 6th May 2019, when no counter affidavit was filed, the Respondents were given a final opportunity to do so within four weeks. The interim order was made absolute during the pendency of the petition. 20. Today the Court found that no counter affidavit has still been filed. Mr. Shadan Farasat, learned counsel appearing for the Respondents stated that he was prepared to argue the petition without a counter affidavit. Accordingly the petition was finally heard. 21. Mr. Rajesh Jain, learned counsel appearing for the Petitioner, drew the attention of this Court to the decision in Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association (1992) 3 SCC 1 to urge that the quashing of the earlier order dated 17th May, 2018 of the OHA restoring the objections to the file of the OHA would result in restoration of the position as it stood on the date of passing an order which had been quashed. In other....
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....egin with, reference may be made to the relevant statutory provisions of the DVAT Act as under: "Section 74 Objections (1) Any person who is dissatisfied with (a) an assessment made under this Act (including an assessment under section 33 of this Act); or (b) any other order or decision made under this Act; may make an objection against such assessment, or order or decision, as the case may be, to the Commissioner; ...... (2) A person who is aggrieved by the failure of the Commissioner to reach a decision or issue any assessment or order, or undertake any other procedure under this Act, within six months after a request in writing was served by the person, may make an objection against such failure. ... (7) Within three months after the receipt of the objection, the Commissioner shall either (a) accept the objection in whole or in part and take appropriate action to give effect to the acceptance (including the remission of any penalty assessed either in whole or in part); or (b) refuse the objection or the remainder of the objection, as the case may be; and in either case, serve on the person objecting, a notice in writing of the decision and the reasons for i....
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....y fixing a terminal date for passing the order? If the contention is that why should the objector issue such a notice as by virtue of section 3.5 (2) of the said Act he enjoys a virtual stay during the pendency of his objections, the answer is that such an objector would have to choose between the protection of section 35(2) and invoking the deeming provisions of section 74(9) He cannot eat his cake and have it too", as it were. He cannot let the applicable time-limit (and more) slip by, all this while enjoying the virtual stay, and also say, at the end of it without issuing the peremptory 15 days notice under section 74(8) of the said Act, that his objections are deemed to have been accepted. Accepting the contentions of d1e respondents and the conclusions of the Tribunal would amount to re-writing the provisions which are clear and unequivocal. When the meaning of a statutory provision is clear and without doubt it does not call for any exercise of interpretation. Nor can we introduce a meaning which the Legislature did not intend. 21. For all these reasons we hold that an objection pending before the Commissioner cannot be deemed to have been accepted simply because of the fac....
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.... not decided within fifteen days from that date. 29. Mr. Farasat next submitted that the Petitioner had not complied with Section 74 (8) of the DVAT Act since the notice under DVAT-41 was not served 'in person' on the OHA but on the Commissioner. He submitted that unless the conditions for applicability of Section 74 (8) of the DVAT Act read with Rule 56 of the DVAT Rules are fulfilled, it cannot be invoked and in support thereof relied on the decision in Mancheri Puthusseri Ahmed v. Kuthiravattam Estate Receiver (1996) 6 SCC 185. 30. The above submission appears to overlook the fact that the Respondent has not controverted the statements made on oath by the Petitioner in the petition that despite best efforts to personally serve the DVAT 41 on the OHA he could not do so. It is seen from Annexure P-5 to the petition, that on the copy of the DVAT-41 Form served on the Commissioner by the Petitioner, there is an acknowledgement stamp with the diary no. E-820717 dated 4th January, 2019. The stamp is of the Central Resources Unit, DT& T. 31. Mr. Jain produced before this Court reply received by him from the Public Information Officer (PIO)/Assistant Commissioner in the DT&T, GNCTD d....