AI Drafter 
TaxTMI 
TaxTMI 
2023 (2) TMI 368
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....t orders, both dated 18.06.2018. 3. The petitioner filed its objections before the Objection Hearing Authority (hereafter 'the OHA'). However, the same were dismissed by an order dated 22.12.2020. The petitioner appealed the said order dated 22.12.2020 before the Delhi Value Added Tax Appellate Tribunal (hereafter 'the Tribunal'). 4. The Tribunal noted that the petitioner had, during the course of proceedings before the OHA, submitted various documents including copies of ledger accounts, original cash vouchers, original purchase bills and other expense bills in compliance with the directions issued by the OHA. The petitioner claimed that it was entitled to exemption in respect of certain charges towards labour expenses etc. The Tribunal was of the view that the OHA ought to have considered the said documents but the order dated 22.12.2020 passed by the OHA did not reflect that any of the said documents were considered. Accordingly, by an order dated 17.09.2021, the Tribunal set aside the order dated 22.12.2020 passed by the OHA and remanded the matter to be considered afresh. The operative part of the order dated 17.09.2021 passed by the Tribunal reads as under: "10....
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....Traders v. Commissioner of Trade & Taxes: (2019) 262 DLT 651. Reasons & Conclusions 11. At the outset, it is relevant to refer to Section 34 and Section 74 of the DVAT Act. The same are set out below: "34. Limitation on assessment and re-assessment (1) No assessment or re-assessment under section 32 of this Act shall be made by the Commissioner after the expiry of four years from - (a) the end of the year comprising of one or more tax periods for which the person furnished a return under section 26 or 28 of this Act; or (b) the date on which the Commissioner made an assessment of tax for the tax period, whichever is the earlier: PROVIDED that where the Commissioner has reason to believe that tax was not paid by reason of concealment, omission or failure to disclose fully material particulars on the part of the person, the said period shall stand extended to six years. (2) Notwithstanding sub-section (1), the Commissioner may make an assessment of tax within one year after the date of any decision of the Appellate Tribunal or court where the assessment is required to be made in consequence of, or to give effect to, the deci....
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....than eight months after the written request was served by the person: PROVIDED that where the Commissioner is satisfied that the person was prevented for sufficient cause from lodging the objection within the time specified, he may accept an objection within a further period of two months. (5) The Commissioner shall conduct its proceedings by an examination of the assessment, or order or decision, as the case may be, the objection and any other document or information as may be relevant: PROVIDED that where the person aggrieved, requests a hearing in person, the person shall be afforded an opportunity to be heard in person. (6) Where a person has requested a hearing under sub-section (5) of this section and the person fails to attend the hearing at the time and place stipulated, the Commissioner shall proceed and determine the objection in the absence of the person. (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 i....
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....ections against the said assessment. The petitioner had not succeeded before the OHA in the first round but had prevailed in the appeal filed before the Tribunal. 13. In compliance of the order dated 17.09.2021 passed by the Tribunal, the OHA is required to decide the petitioner's objections afresh. However, the default assessments have not been set aside. 14. In Shaila Enterprises v. Commissioner of Value Added Tax (supra), the OHA had remanded the matter to the AO with the direction to pass an order afresh within a period of thirty days. The AO failed to pass a fresh assessment order. In this context, the Court observed that the AO had not passed a fresh assessment order within a period of one year as required under Section 34(2) of the DVAT Act. The Court also observed that this Court had, in a series of judgments, emphasised the mandatory nature of the time limits under section 38 of the DVAT Act. The said decision does not apply in the facts of this case because in the present case, the Tribunal has remanded the matter to OHA without disturbing the default assessment framed by the AO. Thus, applying the time limit for passing an assessment order does not arise. 15. Un....
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....tion 34(2) of the DVAT Act appears to be a general provision relating to assessments. In the present case there was no occasion for the Commissioner to pass any order of 'assessment'. As rightly pointed out by the learned counsel for the Petitioner the re-assessment order dated 8th January, 2018 passed by the VATO was not disturbed by this Court when it remanded to the OHA the objections of the Petitioner for a fresh consideration." 18. In the given facts, the provisions of Section 74 of the DVAT Act are applicable. Undeniably, the OHA was required to pass an order within the period as prescribed under Section 74 of the DVAT Act. However, the failure on the part of the OHA to pass an order within the stipulated period does not automatically result in the objections being treated as allowed unless two conditions are satisfied. First, that a written notice requiring the OHA to make a decision within a period of fifteen days has been served in accordance with Section 74(8) of the DVAT Act, and second, the OHA has failed to render the decision within the said period. 19. In this context, it is relevant to refer to the decision of the Commissioner of Sales Tax v. BEHL Construction....