2015 (12) TMI 919 - HC - VAT and Sales Tax

Waiver of pre deposit - Duty demand for non-furnishing of declaration Forms in C and E-1 - Held that - Court notices that the central point concerning the prima facie case of the Assessee, in the manner projected by it, has not merited appropriate consideration in the hands of the Tribunal. The central issue was whether the Audit Officer could have picked up some transactions of the Assessee under Section 58 of the DVAT Act even when the original assessment order for the same period was already pending consideration before the OHA. This does not appear to have been addressed even from the point of view of the prima facie case of the Appellant. - Assessee has already deposited ₹ 20,79,660 during the pendency of the above proceedings was not noticed by the Tribunal. Considering that the total disputed tax is around ₹ 33,41,532 and the aforementioned deposit already constituted more than 60% of the disputed tax, this was a case where there should have been no requirement of any further pre-deposit of tax for consideration of the Appellant s appeal. - Decided in favour of assessee.

Issues:
1. Pre-condition of deposit for appeal under DVAT Act.
2. Assessment order under CST Act and DVAT Act.
3. Prima facie case consideration by Tribunal.
4. Deposit made during proceedings.
5. Requirement of pre-deposit for appeal.

Analysis:
1. The appeal under Section 81 of the Delhi Value Added Tax Act, 2004 was against the Tribunal's order directing the Appellant to deposit 20% of the disputed tax, interest, and 10% of the penalty amount within 30 days as a pre-condition for considering the appeal against the order passed by the Special Commissioner. The disputed tax demand for the period was specified along with the interest and penalty amounts.

2. The facts revealed that an assessment was framed under the Central Sales Tax Act, 1956 for the year 2010-11, with objections pending before the Objection Hearing Authority. Subsequently, a notice for an audit of business affairs under the DVAT Act was received. The transactions subject to assessment were audited, leading to a second assessment order being passed. The original assessment order was set aside, and the case was remanded while the second assessment order was confirmed by the OHA.

3. The High Court noted that the Tribunal did not adequately consider the central issue of whether the Audit Officer could select transactions for audit under the DVAT Act while the original assessment order was pending before the OHA. The Court observed that the Appellant's prima facie case was not appropriately addressed by the Tribunal, highlighting a lack of consideration from this perspective.

4. It was highlighted that the Assessee had already deposited a significant amount during the proceedings, constituting over 60% of the disputed tax amount. Despite this, the Tribunal did not take into account the deposit made by the Assessee. The Court emphasized that considering the substantial deposit already made, there should have been no requirement for any further pre-deposit for the appeal to be considered.

5. Consequently, the High Court set aside the Tribunal's order and directed the Tribunal to proceed with hearing the appeal on its merits without necessitating any additional pre-deposit of the disputed tax, interest, or penalty amount. The appeal was allowed, and the application was disposed of accordingly.

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