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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 ..... 2,07,225/- under Section 38 read with Rule 34 of DVAT Acts and Rules. 3. The Petitioner filed the monthly return for the period 1st October, 2008 to 31st October, 2008 on 28th November, 2008 claiming refund of Rs. 30,42,693. 4. It is stated that under Section 38 (3) (a) (i) of the DVAT Act, the Petitioner was entitled to refund of the aforementioned claims within two months of making them. In other words, in respect of the refund claimed for the period August 1st to 31st 2008, the refund was due by 29th November, 2008 and for the refund claimed for the period 1st to 31st October, 2008 it was due by 28th January, 2009. 5. It is stated that by two separate assessment orders dated 6th October, 2009 (for the periods 1st August to 31st August, 2008 and 1st October, 2008 to 31st October, 2008) the Value Added Tax Officer (VATO) disallowed the input tax credit (ITC) claimed on certain purchases. For the period 1st to 31st August 2008 refund to the extent of Rs. 87, 124 was allowed and the balance Rs. 11,20, 101 was disallowed. For the period 1st October, 2008 to 31st October, 2008, refund to the extent of Rs. 5,12,169 was allowed and the balance Rs. 25,30,534 was disallowed. 6. The de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t complied with by the VATO and no fresh orders were passed. The period for passing an order of default assessment in terms of Section 34 of the DVAT Act expired on 31st March 2013. In the absence of any pending proceedings against the Petitioner, the DTT was liable to refund the entire amount of refund as claimed in the return in terms of Section 38 of the DVAT Act. 9. In response to the notice issued in the present writ petitions, a counter affidavit has been filed by the Respondent in each of the petitions on 6th October, 2009. As far as the refund claimed in respect of the period 1st to 31st August 2008, it is stated that the claim for refund in the sum of Rs. 11,20,101 was rejected on the basis of a report given by the Enforcement branch in respect of the selling dealers M/s Yash Traders, M/s Sachdeva Sons and M/s Standards Motor Cycle House. It was stated that neither the books of accounts were provided by the said dealers nor any stock or godown was found at the premises. Accordingly, their respective registrations were cancelled. The claim by the Petitioner in respect of the purchases made from the said dealers for this period was disallowed. Likewise, the refund claimed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petitioner in the returns originally filed were long overdue. 14. Instead of processing the claims for refund in terms of Section 38 of the DVAT Act, the VATO proceeded to pass two fresh default assessment orders under Section 32 of the DVAT Act for the aforementioned periods (1st August to 31st August, 2008 and 1st October, 2008 to 31st October, 2008) on 20th August 2014. For the period 1st to 31st August 2008 the Petitioner's refund claim was disallowed and a fresh tax demand in the sum of Rs. 2,66,349 (including tax, additional tax and interest) was raised. By a separate order of the same date of default assessment of penalty under Section 33 of the DVAT Act for the same period in the sum of Rs. 1,41,130 was passed. For the period 1st to 31st October 2008, the Petitioner's refund claim was disallowed and a fresh tax demand in the sum of Rs. 5,89,041 (including tax, additional tax and interest) was raised. By a separate order of the same date of default assessment of penalty under Section 33 of the DVAT Act for the same period in the sum of Rs. 3,16,316 was passed. 15. It is in the above circumstances that the Petitioner has challenged the above fresh orders of default ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation under Section 34 of the DVAT Act is not satisfied. 19. This Court has in H M Industries v. Commissioner of Value Added Tax 215 (2014) DLT 671 (DB) made it clear that the proviso to Section 34 (1) of the DVAT Act providing for an extended period of limitation would apply only when the following two conditions are met: (i) that the Commissioner record reasons to believe that the tax has not been paid; (ii) the reason for non-payment of tax would be concealment, omission or failure to disclose full material particulars on the part of the assessee. 20. As already noted herein before neither the above two conditions are satisfied in the present case. As far as the Petitioner was concerned, on the date of the aforementioned purchases, the registration of the selling dealers were not cancelled, as pointed out by the OHA in the order dated 11th August 2010. 21. Section 9 (2) (g) of the DVAT Act inserted with effect from 1st April 2010 provides that unless the tax paid by the purchasing dealers has been actually deposited by the selling dealer with the Government or has been lawfully adjusted against output tax liability and reflected in the return filed for the respectiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... afresh by issuance of the notice under Section 59 (2) of the DVAT Act are wholly without legal basis, the Court is of the view that it would not be efficacious or otherwise subject the Petitioner to further rounds of litigation. For the DTT having failed to comply with the earlier order of his Court and pass a fresh order, the refund claimed by the Petitioner for the aforementioned periods (1st August to 31st August, 2008 and 1st October, 2008 to 31st October, 2008) is hereby allowed. 26. The legal position in this regard has been explained by this Court by the order dated 3rd June, 2010 in the case of Swarn Darshan Impex (P) Ltd v. Commissioner, Value Added Tax. This Court reiterated the law as explained in Commissioner Sales Tax v. Behl Construction (2009) 21 VST 261. It was held that in terms of Section 38 (3) (a) (i) of the DVAT Act, refund has to be made to the Petitioner within two months from the date the return is furnished to the DTT. 27. Consequently, this Court directs the Respondent to refund to the Petitioner the entire amount of refund as claimed in its returns. In view of the notification in file no F (3) 58 fin of 05-06/903 dated 30th November, 2015, The Petitione ..... 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