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TMI Blog2008 (5) TMI 617X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the petitioner will be entitled to produce all its documents to show that the tax burden has not been passed on to the dealers and distributors. - Writ Petition (Civil) Nos. 17423,17391 of 2006 - - - Dated:- 23-5-2008 - MADAN B. LOKUR AND GUPTA V.B. , JJ. The judgment of the court was delivered by MADAN B. LOKUR J. This judgment is in respect of two writ petitions. The first is Writ Petition (Civil) No. 17423 of 2006 in which the prayer of the petitioner is for quashing Order No. 449 dated November 7, 2006 passed by the Joint Commissioner of Sales Tax under the provisions of section 46 of the Delhi Sales Tax Act, 1975 (for short, the DST Act ) in respect of the assessment years 1997-98 to 1999-2000 (three years). Section 46 of the DST Act deals with the suo motu revisionary powers of the Commissioner of Sales Tax and according to the petitioner, neither the Commissioner nor his delegate, the Joint Commissioner, had any jurisdiction to pass the order since the DST Act was repealed by the Delhi Value Added Tax Act, 2004 ( the VAT Act ) which came into force with effect from April 1, 2005. The second is Writ Petition (Civil) No. 17391 of 2006 in which the pra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was held as follows (page 34): . . . Cash discount is allowed when the purchaser makes payment promptly or within the period of credit allowed. It is a discount granted in consideration of expeditious payment. A trade discount is a deduction from the catalogue price of goods allowed by wholesalers to retailers engaged in the trade. The allowance enables the retailer to sell the goods at the catalogue price and yet make a reasonable margin of profit after taking into account his business expense. The outward invoice sent by a wholesale dealer to a retailer shows the catalogue price and against that a deduction of the trade discount is shown. The net amount is the sale price, and it is that net amount which is entered in the books of the respective parties as the amount realisable. In view of the decision of the Supreme Court, since a trade discount does not enter into the composition of the sale price but exists apart from and outside it and prior to it, it cannot be included in the taxable turnover. Therefore, according to the petitioner, the trade discount offered by it to its distributors and dealers could not be included in its taxable turnover. Following the deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discount to the petitioner and, therefore, denying the refund claim. Feeling aggrieved, the petitioner filed two writ petitions in this court being Writ Petition (Civil) No. 15217 of 2004 and Writ Petition (Civil) No. 15285 of 2004. In these writ petitions, the petitioner challenged the notices seeking to reopen the completed assessments and also the reassessment order dated July 16, 2004 passed in respect of the assessment year 19992000. When both these writ petitions came up for hearing on September 22, 2006, learned counsel for the Revenue informed this court that the Commissioner of Sales Tax had taken a decision to withdraw the reassessment order for the year 1999-2000 as well as the show-cause notices for the assessment years 1997-98 and 1998-99. Noting this, the following order was passed by this court on September 22, 2006: Learned counsel for the Revenue states that an instruction has been sought from Shri Subhash Chander, Sales Tax Officer that the Commissioner of Sales Tax had taken a decision to withdraw the reassessment for the year 1999-2000 and show-cause notices for the year 1997-98 and 1998-99. The only question that now remains pertains to refund. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x under section 46 of the repealed DST Act. Pursuant to the show-cause notice dated October 20, 2006, the Joint Commissioner passed an order on November 7, 2006 suo motu revising the assessment orders passed in favour of the petitioner for the three assessment years that we are concerned with and then remanded the matter to the assessing officer for a fresh assessment. It is against this order dated November 7, 2006 that the petitioner has filed Writ petition (Civil) No. 17423 of 2006. As we have already mentioned above, the DST Act was repealed and the VAT Act was brought into force with effect from April 1, 2005. The VAT Act had no provision for suo motu exercise of revisionary power by the Commissioner. The power to revise an assessment order was conferred upon the Commissioner for the first time by an amendment to the VAT Act which incorporated section 74A therein with effect from November 16, 2005. One of the questions canvassed before us was whether the Commissioner or his delegate (the Joint Commissioner) could exercise powers under section 46 of the DST Act which had been repealed by the VAT Act. In continuation of this, another question canvassed before us was tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Civil Contractors [2008] 16 VST 329 (Delhi) has not been upset by the Supreme Court and, therefore, following the decision rendered by us, for which neither learned counsel has given us reason to depart from, we conclude that the Commissioner (and, therefore, his delegate the Joint Commissioner) had no power under section 46 of the repealed DST Act to revise an assessment order. Section 106 of the VAT Act dealing with repeal and savings does not come to the rescue of the Revenue as we have held in that decision. On this short ground itself, Writ Petition (Civil) No. 17423 of 2006 is allowed and the impugned order No. 449 dated November 7, 2006 is quashed. To complete the record, we may note that learned counsel for the petitioner contended that the exercise of power to suo motu revise the assessment orders was mala fide and a clear attempt to overturn the earlier decision of the Commissioner to withdraw reassessment proceedings. It was also said to be a blatant attempt to overreach this court which was already seized of the issue regarding the correctness of the procedure adopted by the Revenue and which made it clear in its order of September 22, 2006 that the only questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be made after the expiry of the said period but not later than twelve months from such expiry, if he is satisfied that there was sufficient cause for not making such claim within that period. (4) and (5) . . . (6) Where an order giving rise to a refund is the subject-matter of an appeal or further proceeding or where any other proceeding under this Act is pending and the Commissioner is of opinion that the grant of the refund is likely to adversely affect the Revenue, the Commissioner may withhold the refund till such time as the Commissioner may determine. It is nobody's case that any of the conditions specified in section 30(3) or section 30(6) of the DST Act exist so as to deny the claim for refund. As far as section 30(3) of the DST Act is concerned, there is no doubt that the claim for refund was made within a period of twelve months from the date of the order giving rise to the claim. As far as section 30(6) of the DST Act is concerned, the revisionary proceedings suo motu initiated by the Commissioner having been quashed by us today, no proceeding in respect of the subject-matter of the claim for refund is pending. The assessment order on the basis of which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard, reliance is placed upon the decision of the Supreme Court in Mafatlal Industries Ltd. v. Union of India [1998] 111 STC 467; [1997] 5 SCC 536. It appears to us that the decision rendered by the Supreme Court is not quite applicable. It is mentioned in the majority judgment written by Justice B. P. Jeevan Reddy (with whom Chief Justice Ahmadi agreed) in the opening paragraph that a significant question concerning the refund of excise and customs duties collected contrary to law arises for consideration. The question arose as a result of certain amendments made to the Central Excise and Salt Act, 1944 and the Customs Act, 1962. The decision of the Supreme Court, therefore, did not concern itself with the question of unjust enrichment in respect of other statutes. Therefore, Mafatlal Industries [1998] 111 STC 467 (SC); [1997] 5 SCC 536 would not help the Revenue in this case. Learned counsel for the Revenue, however, relied upon an unreported decision of this court in Mafat Lal Dyes and Chemicals Ltd. v. Sales Tax Officer Writ Petition (C) No. 3716 of 1992 decided on September 29, 2005(1). In the case a Division Bench of this court relied upon a judgment of the Supreme Court be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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