TaxTMI 
TaxTMI 
2023 (9) TMI 1006
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....VAT Act as well as under the Central Act. For the purposes of executing various projects for DMRC, it had been making local purchases after bearing tax thereupon while on the other hand DMRC had also been deducting TDS on the gross turnover of the petitioner. The petitioner claimed refund of excess tax credit which arose due to Input Tax Credit [ITC], the credit of which was brought forward for a sum of Rs. 17,10,15,285/- for the 4th quarter of 2015-16 and of Rs. 5,44,39148/- for the 1st quarter of 2017-18, along with the applicable interest as under Section 42 of the Delhi Value Added Tax Act of 2004. The original return for the above-mentioned quarter for 2015-2016 was filed on 12 May 2016, wherein a refund of Rs. 18,49,00,377/- was claimed. Subsequently, a revised return was filed on 31 March 2017 claiming refund of Rs. 17,10,15,285/-. In so far as the 1st quarter of FY 2017-2018 is concerned, the revised return claiming a refund of Rs. 5,44,39,148/- was filed on 29 March 2019 by the petitioner. 3. Shorn of unnecessary details, the petitioner asserts that the refund claimed for the assessment year 2015-2016 was pending for a long period of time and ultimately sent a letter da....
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....ill sub judice. 6. As regards the impugned default notices, it is important to note that the certified copies thereof were evidently only made available to the petitioner on 17 January 2023, and apparently such notices were not served upon the petitioner prior thereto. It bears repetition that the revised return for 1st quarter of 2017-18 claiming a refund of Rs. 5,44,39,148/- was filed on 29 March 2019 by the petitioner. Apparently, even for the said period, a default assessment had been passed ex-parte by the AVATO on 26 March 2022, and the copy of the order was only provided to the petitioner on 30 January 2023. In the impugned assessment order, a demand of Rs. 5,13,69,367/- was raised, claiming the additional tax amount of Rs. 3,02,34,329/- along with additional interest of Rs. 2,11,35,038/-, and the same has also been adjusted with the refund claimed in the returns filed by the petitioner. 7. Aggrieved thereof, the petitioner has approached this Court seeking the following relief:- "a) quash and set aside the adjustment order dated 18.11.2022 for being without jurisdiction; b) quash and set aside the unsigned default notices of assessments dated 30.3.20....
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....ul of Section 38 of the DVAT Act, which provides as under:- 38 Refunds: (1) Subject to the other provisions of this section and the rules, the Commissioner shall refund to a person the amount of tax, penalty and interest, if any, paid by such person in excess of the amount due from him. (2) Before making any refund, the Commissioner shall first apply such excess towards the recovery of any other amount due under this Act, or under the CST Act, 1956 (74 of 1956). (3) Subject to ^1[sub-section (4) and sub-section (5)] of this section, any amount remaining after the application referred to in sub-section (2) of this section shall be at the election of the dealer, either - [(a) refunded to the person, - (i) within one month after the date on which the return was furnished or claim for the refund was made, if the tax period for the person claiming refund is one month; (ii) within two months after the date on which the return was furnished or claim for the refund was made, if the tax period for the person claiming refund is a quarter; or] (b) carried forward to the next tax period as a tax credit in that period. ....
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....el 4211; New Age Generators v. The Commissioner, Value Added Tax Order dated 12.07.2016 passed n W.P.(C) 5250/2016; Commissioner of Trade and Taxes v. Corsan Corviam Construction S.A.-Sadbhav Engineering Ltd. JV 2023 SCC OnLine Del 1900; Consortium of Sudhir Power Projects Ltd. and Sudhir Gensets Ltd. v. Commissioner of Delhi Goods and Services Tax 2023 SCC OnLine Del 700; Bhupindra Auto International v. Commissioner, Trade & Taxes & Anr. Order dated 10.11.2016 passed in W.P.(C) 9521/2016; MRF Ltd. v. The Commissioner of Trade and Taxes & Anr. 2018 SCC OnLine Del 10624; Rakesh Kumar Garg & Ors. v. The Deputy Commissioner of Central Excise, Division - I & Ors. Order dated 26.09.2018 passed n W.P.(C) 11757/2016; Otis Elevator Company (India) Ltd. v. Commissioner of Value Added Tax & Ors. Order dated 07.08.2023 replete with the ratio decidendi that on a pure and simple construction of Section 38(3) (a) (ii) of the DVAT Act, a pre-deposit does not partake the character of tax or duty, and thus the Tax Department is neither entitled in law to retain the pre-deposit amount in question nor could it utilize the same for adjustment purposes towards tax liability for different assessment yea....
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....ll realisation. The refund be effected within a period of three weeks from the date of this decision. However, in so far as the impugned default notices are concerned, subject to just exceptions, the petitioner is given the liberty to challenge the same by way of statutory appeal before the Appellate Tribunal as per the law. 14. The writ petition stands disposed of accordingly. The pending application also stands disposed of. ---------------------- Notes: 1. 59 Inspection of records Rule: Rule: Nil Form: Nil (1) All records, books of accounts, registers and other documents, maintained by a dealer, transporter or operator of a warehouse shall, at all reasonable times, be open to inspection by the Commissioner. (2) The Commissioner may, for the proper administration of this Act and subject to such conditions as may be prescribed, require - (a) any dealer; or (b) any other person, including a banking company, post office, a person who transports goods or holds goods in custody for delivery to, or on behalf of any dealer, who maintains or has in his possession any books of accounts, registers or documents....