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TMI Blog2016 (2) TMI 813X X X X Extracts X X X X X X X X Extracts X X X X ..... matters to the VATO for deciding afresh. Apart from the obvious error committed by the VATO in purporting to review a non-existent order, even the requirements of Section 74 B of the DVAT Act were not satisfied and therefore the powers thereunder could not have been invoked. - Further, the jurisdictional requirement for invoking the extended period of limitation under Section 34 of the DVAT Act is not satisfied. Revenue directed to refund the amount with simple interest @6% - Decided in favor of asessee. - W. P. (C) 134/2014, W. P. (C) 135/2014 - - - Dated:- 19-2-2016 - S. Muralidhar And Vibhu Bakhru, JJ. For the Petitioner : Mr. Vinod Srivastava and Mr. Ravi Choudhari, Advocates For the Respondents : Mr. Satyakam, Additional Standing Counsel ORDER Dr. S. Muralidhar, J. CM Nos. 6108/2016 6109/2016 1. For the reasons stated therein, the applications are allowed. The amended writ petition is taken on record. WP (C) Nos.134/2014 135/2014 1. With the consent of the parties, the writ petitions are taken up for final hearing. 2. The Petitioner is a partnership firm registered with the Department of Trade and Taxes (DTT) under the Delhi Value Adde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Objection Hearing Authority (OHA) under Section 74 of the DVAT Act. By two separate orders dated 11th August 2010 and 21st October 2010, the OHA set aside the aforementioned orders of the VATO and remanded the matters to be heard afresh after giving the objector a reasonable opportunity of being heard. Inter alia, it was observed by the OHA in the order dated 11th August 2010 as under: 5. Input tax credit is governed by Section 9 of the DVAT Act, 2004, and if the same has to be disallowed, it has to be under provisions of the said Section. A plain reading of this Section would reveal that except Section 9 (g), no other sub-section disallows input tax credit on the basis of irregularities committed by the selling dealer. Section 9 (g) has been incorporated in the Act with effect from 1.4.2010 and cannot be implemented for the period of audit with retrospective effect. Orders passed by Assessing Authorities should conform to the provisions of the law, and if the Assessing Authority had intended to disallow ITC claimed by the Objector, he should have specifically quoted the relevant provisions, which have been violated by the Objector. Hence, orders passed by the Assessing Author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 11th July, 2014 to the Petitioner for producing documents as stated therein. The Petitioner appeared before the VATO on 17th July 2014, 25th July 2014 and 31st July 2014 and 8th August 2014. Explaining the reason for initiating the above proceedings, the Respondent has enclosed with the short affidavit, the notes in the files of the DTT. These make reference to the pendency of the present writ petitions and seek approval from the Additional Commissioner (Zone 6) to pursue the matter of the assessee and issue notice by invoking Section 34 of the DVAT Act. In the note sheet the Deputy Commissioner has recorded an endorsement in the following terms: ... I am satisfied that this is a clear case where the dealer has not paid taxes and assessment is necessary to assess the tax due. The note suggests that counsel for the DTT had advised that default assessment should be done for the period 2008-09 in the first instance. 13. What is evident from the short affidavit is that a feeble attempt has been made to justify the initiation of fresh proceedings under Section 59 of the DVAT Act, while offering no satisfactory explanation for allowing the time period for completion of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 74 B of the DVAT Act were not satisfied and therefore the powers thereunder could not have been invoked. Section 74 B (1) of the DVAT Act states that the Commissioner may at any time within four years from the end of the year in which any order passed by him has been served, on his own motion, rectify any mistake apparent on record and shall within the said period or thereafter rectify any such mistake apparent on the record. When the original assessment orders dated 6th October 2009 of the VATO had been already set aside by the OHA by orders dated 11th August and 21st October 2010, there was simply no question of the Commissioner, and much less the VATO exercising powers under Section 74 B of the DVAT Act to rectify or review such orders. 18. A second problem with the orders dated 28th August 2014 is that although they purport to have been issued under Section 32 of the DVAT Act, in the body of the order it is stated that they have been made under Section 34 of the DVAT Act, on the basis of the permission granted by the Commissioner on 11th July 2014. In order to invoke the extended period of limitation under Section 34 of the DVAT Act, the Commissioner would, in terms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e entire exercise of the Respondent passing orders of default assessment of tax and penalty against the Petitioner. Given the history of this litigation, where the Petitioner had to approach this Court for refund due to it in terms of Section 38 of the DVAT Act, the move of the DTT to raise fresh demands of tax and penalty after the Petitioner had succeeded before this Court, appears to be an abuse of the process of law. With the Respondent plainly failing to abide by the discipline of law and pass a fresh assessment order within the stipulated time, the Petitioner was entitled to the refund as claimed. It is only with a view to avoiding the legal consequences that the Respondent has resorted to the issuance of a fresh notice under Section 59 of the DVAT Act. What the DTT did by that process was to give itself a second opportunity of assessing the Petitioner to tax for the aforementioned periods (1st August to 31st August, 2008 and 1st October, 2008 to 31st October, 2008) long after the limitation for doing so expired and only, it seems, to deny somehow the refund due to the Petitioner. 24. Therefore, as far as this Court is concerned, the proceedings sought to be initiated by n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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