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TMI Blog2016 (6) TMI 391X X X X Extracts X X X X X X X X Extracts X X X X ..... on 100A of the DVAT Act appears to be in conformity and consistence with Sections 12 and 13 of the IT Act. The originator of the notices is a statutory authority, having the powers in terms of the DVAT Act read with the DVAT Rules to prescribe the manner of service of electronic orders, summons, notices etc. The Commissioner, as the originator of the notices under Section 59 (2) of the DVAT Act, has in terms of the order issued by him on 17th January 2014 deemed that pasting of the notices on the web page of the dealer would be deemed service of notice on the dealer. The Petitioner being a registered dealer under the DVAT Act ought to have been aware of the Order dated 17th January 2014 issued by the Commissioner. The Petitioner was required to go to its account on the DT&T website to view the notices posted on the said website. If the Petitioner had given the mobile phone details to the DT&T, it would have received SMS alerts as well. The failure by the Petitioner to go to the website to view the impugned notices, notwithstanding the order dated 17th January 2014 of the Commissioner, disables it from contending that there is no proper service on it of the said notices under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9209/2015 (for stay), W.P.(C) 11222/2015 & CM No. 29210/2015 (for stay), W.P.(C) 11279/2015 & CM No. 29493/2015 (for stay), W.P.(C) 11280/2015 & CM No. 29498/2015 (for stay), W.P.(C) 11383/2015 & CM No. 29954/2015, - - - Dated:- 2-6-2016 - S. MURALIDHAR VIBHU BAKHRU JJ. For the Appellant: Mr. Vasdev Lalwani and Mr. Rohit Gautam, Advocates. For the Respondent: Mr Gautam Narayan, ASC with Mr. R.A. Iyer, Advocate. WITH W.P.(C) 11384/2015 CM No. 29955/2015 (for stay), W.P.(C) 11556/2015 CM No. 30602/2015 (for stay), W.P.(C) 11557/2015 CM No. 30603/2015 (for stay) W.P.(C) 11558/2015 CM No. 30605/2015 (for stay), W.P.(C) 11559/2015 CM No. 30606/2015 (for stay), W.P.(C) 11561/2015 CM No. 30608/2015 (for stay), W.P.(C) 11562/2015 CM No. 30609/2015 (for stay), W.P.(C) 11639/2015 CM No. 30914/2015 (for stay) W.P.(C) 11640/2015 CM No. 30915/2015 (for stay), O R D E R Dr. S. Muralidhar, J.: 1. These are fourteen petitions filed by a dealer registered under the Delhi Value Added Tax Act 2004 ('DVAT Act') challenging the default notices of assessment of tax and interest dated 7th September 2015 under Section 32 of the DVAT Act passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that since it was not aware of the above notices, it did not appear before the VATO Ward 70 on the date mentioned in the notice. Consequently, the impugned ex parte notices of default assessments of tax, interest and penalty under Sections 32 and 33 of the DVAT Act came to be issued on 7th September 2015 raising demands for the periods mentioned therein. Hereunder, in a tabular form, are the details of the period, the dates of the notices issued, the dates of the notices of default assessments and the amounts which are impugned in these petitions: Writ No Tax Period Date of S.(59)(2) Notice Order u/s 32 Order u/s33 Date Amount Date Amount W.P.(C) 11221/2015 4th quarter of 2014 11th August 2015 7th September 2015 2,29,292 W.P.(C) 11222/2015 1st quarter of 2014 11th August 2015 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7th September 2015 11,74,361 7. The reasons given in each of the notices is identical except for change in the periods and the figures. The reasons in one such notice dated 7th September 2015 of default assessment of tax and interest for 1st, 2nd and 4th quarters of 2014-15 reads as under: A notice under Section 59 (2) of DVAT Act 2004 was issued to the dealer on 11th August 2015 directing the dealer to file documents before 14.08.2015 in r/o interstate sales made to M/s. Rajesh Traders (TIN 08854055364) dealer of Rajasthan whose which has been found to be a suspicious/bogus dealer. Since the dealer has made ISS of fabrics to the tune of Rs. ₹ 4,81,31,272/- in First Qtr. 2014-15, ₹ 2,23,20,667/- in Second Qtr. 2014-15 ₹ 76,43,063/- in the Fourth Qtr. 2014-15 Taxable @5% additional tax and penalty under Section 86 (10) of DVAT Act, 2004 is imposed against the dealer along with interest up to date. Petitioner's contentions on merits 8. It is contended by the Petitioner that if indeed it had undertaken inter-state sales as alleged in the above notices of default assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court finds, for reasons to be discussed hereafter, that there are obvious glaring errors in each of the impugned orders which appear to system generated and issued without application of mind. In the circumstances relegating the Petitioner to the alternative remedy of going before the OHA would cause further delays in resolving the disputes that have arisen and would not be efficacious. Therefore, the above preliminary objection is rejected. Service of notice 15. The second issue concerns the service of the notices under Section 59 (2) DVAT Act on the Petitioner. Section 100 A of the DVAT Act 2004 speaks of automation i.e. the preparation and issue of notice and orders in electronic form. It reads as under: 100A Automation (1) The Government may, by notification in the Official Gazette, provide that the provisions contained in the Information Technology Act, 2000 (21 of 2000) as amended from time to time, and the rules made and directions given under that Act, including the provisions relating to digital signatures, electronic governance, attribution, acknowledgement and dispatch of electronic records, secure electronic records and secure digital signatur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39; button available at the end of the notice, as a proof of reading the document. Afterwards, the dealer may access other links. It is then stated the manner of service, shall be deemed to be a service of document for the purpose of Rule 62 of the Delhi Value Added Tax Rules, 2005 at par with other manners prescribed under the said Rule . Further the dealers are advised to visit their webpage regularly in order to have immediate access of notice/summon/order issued. 18. Mr. Lalwani however contends that this is contrary to Section 12 and 13 of the IT Act which read as under: 12. Acknowledgement of receipt (1) -where the originator has not agreed with the addressee that the acknowledgment of receipt may be given by (a) Any communication by the addressee, automated or otherwise.; or b) Any conduct of the addressee, sufficient to indicate to the originator that the electronic record has been received. (2) Where the originator has stipulated that the electronic record shall be binding only on receipt of an acknowledgement of such electronic record by him, then unless acknowledgement has been so received, the electronic record shall be deemed to have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iness, the principal place of business, shall be the place of business; (b) if the originator or the addressee does not have a place of business, his usual place of residence shall be deemed to be the place of business; (c) 'usual place of residence', in relation to a body corporate, means the place where it is registered. 19. The originator of the notice in the present case is the Commissioner, VAT. Unless it has been agreed to the contrary between the originator and the noticee, the service of an electronic record will occur only when it enters a computer resource outside the control of the originator. Section 100A of the DVAT Act, inserted with effect from 16th November 2005, enables the Commissioner to issue summons/notices/orders in electronic form. Section 100A of the DVAT Act appears to be in conformity and consistence with Sections 12 and 13 of the IT Act. The originator of the notices is a statutory authority, having the powers in terms of the DVAT Act read with the DVAT Rules to prescribe the manner of service of electronic orders, summons, notices etc. The Commissioner, as the originator of the notices under Section 59 (2) of the DVAT Act, has i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rely noting the fact of the notices having been framed. From this it is not possible to infer that the impugned notices of default assessments of tax, interest and penalty were issued by the Record Keeper and not by the VATO. Default assessments unsustainable in law 24. The central issue in these petitions concerns the validity of the impugned notices of default assessments of tax, interest and penalty all dated 7th September 2015. A perusal of the notices of the assessment of tax and interest dated 7th September 2015 reveals that they have all been issued under Section 32 of the DVAT Act. Each of them is identically worded except for the periods and the figures. Each notice records the fact that a notice under Section 59 (2) was issued to the dealer on 11th August 2015 asking him to file documents before 14th August 2015 in respect of the inter- state sales made to M/s. Rajesh Traders, a dealer in Rajasthan which was found to be a 'suspicious/bogus dealer'. The next paragraph simply directs the dealer to pay a sum as tax and furnish proof of such payment on or before 6th October 2015. 25. Each of the impugned notices of default assessment of tax and interest r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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