TaxTMI 
TaxTMI 
2019 (8) TMI 1249
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....gether with the interest in terms of Section 42 of the Delhi Value Added Tax Act, 2004 (DVAT Act). Background facts 2. The background facts are that the Petitioner is a dealer registered under the DVAT Act, functioning under the jurisdiction of the Value Added Tax Officer (VATO), Ward No.41. The Petitioner filed the prescribed monthly returns for the periods for each of the months from May to December 2010, January to March 2011, March 2012, July 2012 and November, 2012. 3. On 19th May 2011, notices of default assessment of tax, interest and penalty under Sections 32 and 33 of the DVAT Act were issued by the VATO (Audit). According to the Petitioner, the said assessments were issued by the VATO (Audit) without having jurisdiction and authority in DVAT-50 as per Section 68 of the DVAT Act read with Rule 65 of the DVAT Rules. 4. The first of these orders is for the period ending 30th April, 2009. The relevant portion of the said order reads as under: "During the course of audit the records/books of the firm were test checked and it has been revealed that during this period the dealer has claimed the ITC to the tune of Rs. 37,72,963/- on the strength of the Tax In....
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....s dated 16th October, 2012. 10. On 18th June, 29th June, 2015, 11th July, 2016 and 11th January, 2018, the Petitioner was reassessed with Nil demands under the CST Act for the periods 2009-10 (Annual), 2010-11 (Annual), March, 2012 and 2012-13 (Annual) respectively by the Special OHA. The Petitioner then filed W.P.(C) No.8517/2017 in this Court claiming refund of Rs. 1,34,35,473/- for the periods May, 2010 to March, 2011, March, 2012, July, 2012 and November, 2012. However, on account of the pendency of the objections before the OHA for the period 2009-10, the above writ petition was withdrawn. 11.The Petitioner states that on 18th December 2017, the Petitioner personally served notices informing DVAT-41 (24 in number) in terms of Sections 74 (7) and 74 (8) of the DVAT Act read with Rule 56 of the DVAT Rules. On 2nd January 2018, that the period of 15 days from the date of service of notice in Form DVAT-41 expired. According to the Petitioner, since no decision was communicated by the OHA on or before 2nd January, 2018, the OHA became functus officio and the objections were deemed to have been allowed in favour of the Petitioner under Section 74 (9) of the DVAT Act. 12. Wh....
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....ropriate or the concerned OHA". Recording the above statement, the Court adjourned the matter for 21st January 2019. 19. On 21st January, 2019, the following order was passed: "Learned counsel for the petitioners points out that vide order of the OHA dated 16th January, 2019, its representatives were asked to appear before the OHA in person or through an authorized representative on 18th January, 2019. Till the next date of hearing, no adverse orders shall be made by the OHA. 20. At the hearing on 9th August, 2019, the Petitioner produced before the Court copy of a notice dated 15th April, 2013 issued to the Petitioner by the OHA informing him that the hearing had been fixed on 13th May, 2013. This was in response to a query posed by Mr Satyakam, learned Additional Standing Counsel for the Respondents that the documents produced as Annexure-5, viz., the acknowledgment issued to the Petitioner when it filed the notice under DVAT-41 was perhaps not a genuine document. On that date, Mr. Satyakam sought time for instructions on the aforementioned document. 21. After the said hearing, the Additional Commissioner, Zone-3, Department of Trade and Taxes filed a c....
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....s per analysis, this receipt pertains tom year 2011. Any reference regarding the said receipt No.- 09100000984694 is not available in the data base available. Hence the receipt cannot be authenticated. Thus the system branch not authenticated the receipt No. 09100000984694 and the matter requires further investigation." 23. In paragraph 12, it was stated as under: "12. That further petitioner dealer claimed to have filed objections in DVAT-4 1 before OHA on 18/12/2017 which was also not seems to have been received by any OHA as the reader to Joint Commissioner vide its letter dated 16/05/2018 stated as under: "As per record available it is hereby stated that these objections are not received in this Branch neither received from any other OHA"." 24. It is then stated that the Commissioner (VAT) deputed the OHA on 16th January, 2019 to decide all pending objections, but this Court had by its order 21st January, 2019, directed the OHA not to pass any adverse orders. In paragraph 15, it is stated as under: "15. That the Assistant Commissioner, Ward 41 also wrote a letter to OHA, Z-III for records of the dealer and in reply it is submitted by....
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....iled on line objection (form DVAT-38) 12 cases* of tax+ interest twelve case of penalty {Local) and nine cases of tax+ Interest, nine cases of penalty (CST) before OHA {Spl. Comm. Zone-IV) on 22-07-2011 vide receipt no 09100000984694. Keeping in view of above it is therefore, requested to submit the self attested copies of objections (From DV["'T-33) may please to submitted to this office immediately so that necessary action should be initiated in respect of issued of said refund." 29. In response thereto, the Petitioner did supply the self-attested copies of Form DVAT-38 by a letter dated 14th May, 2018. The date stamp of 14th May, 2018 of the VATO, Ward-41 on the covering letter written by the Petitioner is annexed as Annexure-P13 to the petition. These documents have not been denied by the Respondents, even in the affidavit dated 21st August, 2019. 30. The mandatory nature of Section 74(8) of the DVAT Act has been emphasized by this Court in Commissioner of Sales Tax v. M/s Behl Construction (2009) 21 VST 261(Del) where it was held: "8. In sub-sections (8) and (9) of section 74, the legislature has provided for the situation where the commissioner doe....
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....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 the 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." 31. The above position was reiterated by this Court recently in its judgment dated 25th July, 2019 in W.P.(C) No.13272/2018 (M/s Mukesh Agencies v. Commissioner of Trade & Taxes). 32. The whole object behind Section 74 (8) read with Section 74 (9) would stand defeated by requiring a dealer to repeatedly file attested copies of the DVAT-38 long after the deadl....
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....y the purchasing dealers has been actually deposited by the selling dealer with the Government or has been lawfully adjusted against output tax liability and reflected in the return filed for the respective tax period, no tax credit shall been allowed to the dealers or class of dealers. Since the provision is prospective it does not apply to the purchases made by the Petitioner in the months of August and October, 2008." 37. Therefore, in any event, even on merits the Petitioner would in all probability have succeeded before the OHA. For the aforementioned reasons, the objections of the Petitioner are declared as deemed to have been allowed under Section 74 (8) read with Section 74 (9) of the DVAT Act. Consequently, while setting aside the default notices of tax, interest and penalty, all dated 19th May 2011, issued by the VATO, Ward-41, this Court directs the Respondents to issue refund to the Petitioner in the sum of Rs. 1,34,35,473/- for the aforementioned periods i.e. May to December 2010, January to March 2011, March 2012, July 2012 and November 2012, within a period of four weeks from today by issuing appropriate orders in that regard. 38. It is made clear that the Resp....