9911796707
TMI Blog2016 (6) TMI 188X X X X Extracts X X X X X X X X Extracts X X X X ..... Petitioner No. 1 proprietory concern, of which Petitioner No. 2 is the Proprietor, seeking refund of a sum of Rs. 34,62,662/- which is outstanding with effect from 1st April, 2005. 2. There is a long history to the present petition. Petitioner No. 1 was registered with the VAT Authorities way back in 2004. By the assessment order dated 30th October, 2007 for the year 2006-07 a refund of tax credit of Rs. 45,32,825/- was determined by the Department of Trade and Taxes (DT&T). Petitioner No. 1 was allowed to carry forward the said amount in the returns for the subsequent years. According to the Petitioners, between 2007 and 2012 it submitted returns under the Delhi Value Added Tax Act, 2004 (DVAT Act) regularly and kept carrying forward the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in terms of Section 38 of the DVAT Act. The Court directed that the refund application of Petitioner No. 1 should be disposed of in terms of Section 38 of the DVAT Act within six weeks. 6. Pursuant to the above direction, on 29th June 2015, the Assistant Commissioner, Ward-16 passed the impugned order, in which, after setting out the brought forward and carry forward figures from April 2006 to March 2007, it was observed as under: "The above mentioned Chart based on the information of the dealer filed in DVAT-16 clearly reflects that there is no continuity in brought forward and carry forward or refunds. As such the claim of the dealer of refund is not correct and cannot be considered at this stage and the same is hereby rejected." 7. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2nd January, 2016 under Section 59(2) in the second W.P. (C) 1117/2016. 5. When asked what prompted the issuance of notice under Section 59 (2) of the DVAT Act, Mr Gautam Narayan, learned counsel for the Respondent, informs the Court that the records of the Petitioner were unable to be traced and which is why it became necessary to seek information from the Petitioner. Mr Narayan states that the Respondent will file an affidavit at least one week prior to the next date of hearing explaining the circumstances under which the records of the Petitioner's assessment were unable to be traced and why the Petitioner‟s claim for refund was not processed and a decision taken thereon within the time limit set out under Section 38 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id request of the Respondents. When the Court inquired what records should be asked to be produced, the counsel for the Respondents referred to the notice dated 22nd January 2016 issued under Section 59 (2) of the DVAT Act asking the Petitioner to produce 25 documents for a period of over ten years from 1st April, 2005 to 22nd January, 2016. Some of the documents sought are „GR/RRs,‟ sale register, form DVAT-31, stock register and so on. In other words, documents that are usually sought for making an assessment are now being asked from the Petitioner since the Respondents admittedly have weeded out the record. 12. In the circumstances in which the request is being made, it appears to be wholly unreasonable. In the first place t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the DVAT Act and followed that up with a notice dated 6th February 2016 of default assessment tax and interest under Section 32 of the DVAT Act for the 4th quarter raising a total demand of Rs. 1,96,68,525 and a notice of the same date of default assessment of penalty of Rs. 84,46,393 under Section 33 of the DVAT Act. The said orders too were passed not on the basis of any record. On this ground itself the said demands are rendered arbitrary and unsustainable in law. To be fair to learned counsel for the Respondents, they made no attempt to defend the said patently illegal default assessments of tax, interest and penalty. 13. Considering that there has been an abject failure by the Respondents to comply with the statutory mandate of Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 34,62,662 (ii) the notice dated 22nd January 2016 issued to Petitioner No. 1; (iii) the notice dated 6th February 2016 of default assessment tax and interest under Section 32 of the DVAT Act for the 4th quarter in the sum of Rs. 1,96,68,525 and (iv) the notice dated 6th February 2016 of assessment of penalty of Rs. 84,46,393 under Section 33 of the DVAT Act. 15. The Court directs the Respondents to issue in favour of Petitioner No. 1 the refund order in the sum of Rs. 34,62,662 together with 6% interest per annum from 20th February, 2015 till the date of its payment, which shall not be not later than 31st May, 2016. 16. Given the history of the case which has witnessed the Petitioners coming to this Court time and again for relief, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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