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TMI Blog2013 (1) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... after notice issued by the concerned authorities, the route prescribed is under Section 74. It is in such cases that there is a shortened limitation period. Furthermore, the nomenclature adopted or the provision of law mentioned in the application would not detract from the remedies available to an applicant in law, or limit him to what he says in the claim. Invariably, applicants are guided by their advice; if that is defective, they cannot be deprived of the remedy. The Objection Hearing Authority (OHA) has to decide the merits of the objections filed by the Petitioner dealer. If it is found that the objections are duly supported by materials, maintained in due course of the business and the claim that the dealer has paid excess VAT is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08 rejected the objection by observing that the application for refund was not maintainable as it was time barred. Aggrieved, the petitioner filed an appeal to the Tribunal. It was contended that the order of OHA was untenable, in view of Section 28 (2) which permits a dealer to lodge an objection if there is detection of an error or mistake in any return furnished by a person within four years of making of an assessment if as a result of the mistake or error tax was paid more than was due. Thus, an order has been passed without application of mind in view of the fact that there has been no delay in filing objection. Form DVAT-39 along with affidavit was filed by way of abundant precaution only. It was alternatively argued that the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the ground that these were barred by limitation and he rightly did not condone the delay which was said to have occurred due to negligence of the advocate. 5. At the outset, this Court notices that the impugned order is a majority order; the Chairman has differed from the other members. This appears to be the norm, since we have seen at least five such orders displaying an identical pattern where the members of the Tribunal differed from the Chairman! The proceedings held also prima facie reveal lack of collegiality and harmony, since the difference of opinion in most cases is not fundamental, or based on principle, but not un-often based on slight variation in the way facts are seen. This Court is constrained to make these observatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two months of the date of service of the assessment, or order or decision". The reasoning of the dissenting view - which we endorse - is that in this case the longer period (four years) of limitation was applicable, because self-assessment is, by reason of Section 31 of the Act a deemed service of notice on the day return is filed and that such point in time cannot be considered as "the date" - under Section 74 (4). That expression is clarified by the words "within two months of the date of service of the assessment or order or decision". Therefore, an objection- which in reality was what the petitioner had preferred, despite its nomenclature of an application, under Section 28 attracts the longer period of four years, - from the date of or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 74 (4) (a) of the Act reproduced as above shows that the period of limitation of 2 months provided for filing the objection is for such objection as are u/s 74 (1) of the Act. Consideration of the provisions as contained in Section 74 (4) (a) in consonance with Section 74 (1) of the Act shows that the period of limitation of two months is for such objections as are filed against the assessment made under Section 31 as well as 32 and 33 of the Act read with Section 28 (2) of the Act, as also the expression used in 74 (4) (a) of the Act is "within two months of the date of service of the assessment, or order or decision, as the case may be". 9. This court is of opinion that the majority order of the Tribunal is in clear error of law. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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