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TMI Blog2016 (5) TMI 1208X X X X Extracts X X X X X X X X Extracts X X X X ..... red into between the Petitioner and its clients can be constituted as a 'sale' within the meaning of Section 2(1)(zc)(vi) ibid is required to be answered keeping in view the principles as reiterated by this Court in the case of Tim Delhi Airport Advertising Pvt. Ltd. v. Special Commissioner –II, Department of Trade & Taxes & Ors. [2016 (5) TMI 297 - DELHI HIGH COURT]. Accordingly, the impugned default assessment orders and notices of penalty are set aside and the matter is remanded to the VATO to consider it afresh in the light of the principles as reiterated in Tim Delhi Airport Advertising Pvt. Ltd. (supra). The penalty orders under Section 86 (14) of the DVAT Act are also set aside. - Petition disposed of - W.P.(C) 6040/2013 & CM No.132 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notices of assessment of penalty u/s 33 dated 04.09.2014; (E) In the alternate if this Hon'ble Court holds otherwise then to issue a writ of certiorari or any other writ, order or direction in the nature thereof thereby quashing assessments made by Respondent No.4 treating the transaction in question as service transaction; And also to issue writ of mandamus or any other writ, order or direction in the nature thereof thereby directing Respondent No.4 to refund the amount so collected on the transaction in question to the Petitioner in as much as there cannot be simultaneous levy of both sales tax/VAT and service tax on the same transaction; and in the alternative to transfer the tax collected from the Petitioner to Respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,20,91,72,662/- and ₹ 1,24,70,92,642/- respectively and consequently raising a demand of VAT of ₹ 21,16,00,327/-, ₹ 20,45,03,397/- and ₹ 18,75,33,691/- for the respective Financial Years. In addition, the Petitioner has also been served with the notices of penalty dated 4th September, 2014 under Section 33 of the DVAT Act. 6. The notices of default assessment indicates that the VATO has assessed the Petitioner‟s turnover as exigible to VAT after concluding that the agreements entered into by the Petitioner with its clients constituted transfer of the right to use various display sites and, therefore, fell within the expanded definition of 'sale' under Section 2(1)(zc)(vi) of the DVAT Act. 7. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same and pass a reasoned order after affording the Petitioner an opportunity to be heard. 11. It is clarified that all rights and contentions of the Petitioner are open and if the Petitioner is aggrieved by the order passed by the VATO, it shall be at liberty to initiate appropriate proceedings. It is further clarified that if it is found that the transactions entered into by the Petitioner are chargeable to tax under the DVAT Act, the Petitioner would also be at liberty to initiate appropriate proceedings for refund of service tax paid under the Finance Act, 1994. Needless to mention that if such proceedings are initiated, the same shall be considered in accordance with law. 12. The petition and the pending application are dispos ..... X X X X Extracts X X X X X X X X Extracts X X X X
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