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TMI Blog2015 (12) TMI 1197X X X X Extracts X X X X X X X X Extracts X X X X ..... light of the documents that have been emerged during the course of the present hearing and which the Appellant claims not to have received earlier, and since these documents have a vital bearing on the validity of the assessments initially made and the reassessment made subsequently, the Court considered it appropriate to remand the matter to the VATO for a de novo re-assessment proceeding after giving the Appellant a proper opportunity to explain the materials now placed on record. - if it is able to be established by the Department that an audit did take place in accordance with Section 58 of the DVAT Act and the audit report showed that the Appellant was not entitled to avail of the benefit of the C-Forms and H-Forms produced by him in support of the claim of interstate and export sales, that would go to the very root of the matter and render the initial assessment made under Section 9(2) of the CST Act unsustainable in law. Appellant has been given all the documents, which the counsel for the Respondent assures form part of the record, there should be no difficulty in the VATO proceeding further in the matter on the basis of the said documents. Nevertheless, to allay the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rn or incorrect return or a return which did not comply with the requirements of the DVAT Act. Similar notices were issued in respect of each of the four quarters of the AY in question. The notices inter alia stated that when enquiries were made with certain transporters viz., Inland Movers (P) Ltd., Kolkata, Vijay Lakshmi Transport Company, Delhi and Assam Bombay Cargo Carriers, New Delhi it appeared that the goods receipts ( GRs ) which were furnished by the Appellant were unable to be verified. It was accordingly stated by the VATO that in the absence of such verification, the entire central sales against the C-Forms and H-Forms were liable to be rejected and were to be treated as local sales which would be taxable at 12.5%. The differential tax amount was computed for each of the quarters along with interest on tax deficiency at 15%. Penalty under Section 33 read with Section 86 (10) of the DVAT Act was also imposed. 4. Aggrieved by the above notices, the Appellant filed objections before the Objection Hearing Authority ( OHA ). By a common order dated 17th December 2012 for all the four quarters of AY 2008-09, the OHA rejected the objections and confirmed the demand of tax, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight of the above submissions, one of the questions that arose was whether any notice at all had been issued to the Assessee in the course of the audit proceedings prior to issuance of the notice for reassessment and penalty under Sections 32 and 33 of the DVAT Act. Mr. Gautam Narayan, learned counsel for the Respondent, referred to the fact that a notice had indeed been issued to the Appellant through its Proprietor on 8th September 2011, which was however disputed by Mr. Srivastava. The Court then passed the following order on 27th November 2015: 1. Mr Gautam Narayan, learned counsel for the Respondent, states that he would like to examine the records and produce before the Court the relevant documents including copy of the notice purportedly issued to the Assessee 8th September, 2011. Copies of the said notice, the statement made by the Assessee in writing in response thereto and any other relevant document be filed by the Respondent as a compilation, with an advance copy to counsel for the Appellant, before the next date of hearing. 2. List on 11th December, 2015. 10. Since then Mr. Narayan, learned counsel for the Respondent, has filed a compilation of documents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... find in it many of the documents which have been produced in the compilation. That apart, the statement dated 8th November 2011 given by the sole proprietor of the Appellant was doubted and it was suggested that it was possibly obtained under coercion. Significantly, Mr. Srivastava, learned counsel for the Assessee did not at that stage dispute that the letter was in the handwriting of Mr. Harbinder Pal Singh and that it was signed by him on each page. He maintained that the notice purportedly issued by the VATO to the Appellant on 8th November 2011 did not show that such a notice had in fact been either dispatched or delivered/served on the Appellant. When the attention of Mr. Srivastava was drawn to the para 5 of the handwritten statement of Mr. Harbinder Pal Singh, he volunteered that it was unlikely that Mr. Harbinder Pal Singh could have voluntarily written that paragraph. 13. In light of the documents that have been emerged during the course of the present hearing and which the Appellant claims not to have received earlier, and since these documents have a vital bearing on the validity of the assessments initially made and the reassessment made subsequently, the Court con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19. Even the issue raised by Mr. Srivastava on whether the assessment already made under Section 9 (2) of the CST Act can be overturned as a result of an audit exercise undertaken under Section 58 of the DVAT Act, without first setting aside the said assessments, is a point that has to be considered by the VATO once he is satisfied about the validity of the audit exercise undertaken under Section 58 of the DVAT Act. Therefore, there are several aspects of the matters, both legal and factual, an investigation into which cannot obviously be undertaken by the Court in the present proceedings. The Court clarifies that it will be open to both the Assessee and the Department to urge any further grounds that they may wish to in relation to the re-assessment proceedings before the VATO, which are being remanded to him by this order. 20. One other aspect requires to be adverted to. Now that the Appellant has been given all the documents, which the counsel for the Respondent assures form part of the record, there should be no difficulty in the VATO proceeding further in the matter on the basis of the said documents. Nevertheless, to allay the concerns expressed by counsel for the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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