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TMI Blog2016 (8) TMI 426X X X X Extracts X X X X X X X X Extracts X X X X ..... this and whether any action on the disciplinary side is not called for? Consequently, the Commissioner, VAT is directed to seek an explanation from the VATO who issued the above 'adjustment order' and to pass appropriate orders on the disciplinary side as he deems fit not later than four weeks from today. A copy of this order be delivered forthwith to the Commissioner, VAT by the Registry through a Special Messenger for compliance with the above direction. – decided in favor of petitioner. - W. P. (C) 5478/2016 - - - Dated:- 5-8-2016 - S. Muralidhar And Najmi Waziri, JJ. For the Petitioner : Mr. Vineet Bhatia, Advocate with Ms. Neha Choudhary, Advocate For the Respondent : Mr. Ramji Srinivasan, Senior Advocate With Mr. Satyakam, ASC with Mr. Rajesh Goel, Addl. Commissioner, DT T, GNCTD. ORDER Dr. S. Muralidhar, J. 1. The Petitioner Shaila Enterprises is a Hindu Undivided Family, the Karta of which is Mr. Gyan Chand Khattar. Its registered office is at Jhandewalan, New Delhi. The Petitioner is registered as dealer under the Delhi Value Added Tax Act, 2004 ( DVAT Act ). The Petitioner states that it is engaged in the business of trading in cement. 2. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nter affidavit filed by Mr. Rajesh Goyal, Additional Commissioner, DT T, is that it refers to the refusal to grant refund because of the following reasons but there are no reasons stated below the said line. It again states that the refund claim has been adjusted completely against the following outstanding demand and again there is blank below this line. 7. In short, the above order makes no sense. The most crucial parts of the so called adjustment order are completely missing. As it transpired, on that date i.e. 30th December 2010 there was no outstanding demand that had been determined for the aforementioned period for which the refund was claimed. Yet the VATO signed the order mechanically without application of mind. 8. What happened thereafter is interesting. One week after the so called adjustment order, on 5th, 6th and 7th January 2011, the VATO (Ward 73) Mr. Vijay Kumar Bansal passed notices of default assessment of tax and interest as well as penalty under Section 32 and section 33 of the DVAT Act and under Section 9 (2) of the Central Sales Tax Act, 1956 for the following periods:- Period 2007-08 month DVAT CST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of all documents such as tax invoices, retail invoices, statutory forms, mode of payments, G.Rs, R.C of interstate punchers, copy of assessment orders if any etc., as per the laid down procedures contained in the various circulars on claim of refunds and as per the provisions of DVAT Act. 5. Ld AA shall provide sufficient opportunity to the objector for seeking any clarification/confrontation on any adverse material and a speaking order thereafter shall be passed afresh giving proper reasons for allowing /disallowing the refund as per the law. Imposition of penalty shall be consequential to the default of any tax due. 6. The objector is directed to appear before the AA/NA on 15/07/2013. The matter may be thereafter be decided in 30 days time. 11. According to the Petitioner, despite appearing before the Assessing Officer ( AO ) on 15th July 2013 pursuant to the above order and submitting all the documents, no order was passed, by the AO. However, according to the Respondent DT T, the Petitioner never appeared before the AO on 15th July 2013 pursuant to the above order. 12. The Petitioner has filed a rejoinder affidavit asserting that the Petitioner did appear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave passed the order not within thirty days but soon thereafter in view of the words may be . However, here the AO appears to have forgotten about the proceedings altogether and not take any action whatsoever. If as contended by the Respondent, the Petitioner failed to appear before the AO on 15th July 2013, the AO was not absolved from passing a fresh order in respect of the refund claimed of the Petitioner. This was his bounden statutory duty. 17. It was pointed out that, in terms of Section 34(2) of the DVAT Act, there is no power with the OHA to remand the matter to the AO. In the event of a remand ordered by the Court or Appellate Tribunal, the fresh decision on remand was required to be taken within one year. It was volunteered by learned counsel for the Petitioner that notwithstanding the above legal position, even if the Petitioner were to assume without admitting that such a power exists with an OHA then in any event the AO was required to pass an order afresh within a maximum period of one year after the date of the order of the OHA. Clearly in the present case no fresh assessment order was passed nor was an order of refund was passed within one year of the date of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 2008, which the Petitioner has claimed refund along with the return became due to the Petitioner from the expiry of one month thereafter in terms of Section 38(3)(a) (i) of the DVAT Act. The interest thereon till the date of payment also falls due in terms of Section 42 of the DVAT Act. 22. The Court finds that along with the counter affidavit, the Respondent has now enclosed a notice dated 6th July 2016 issued under Section 59(2) of the DVAT Act, requiring the Petitioner to produce documents and records for the period 1st May 2007 to 31st December 2007. Since the time limit for making any re-assessment of the said period has long been closed, the said notice is obviously contrary to law. The said notice need not be acted upon by the Petitioner and will not be pursued by the DT T hereafter. 23. The Court, accordingly directs the Respondent DT T to pay to the Petitioner the aforementioned refund amount with the interest thereon up to the date of payment on or before 5th September 206. The Court makes it clear that the amount through RTGS should be deposited in the Petitioner s account on or before that date. Any non-compliance of this direction will entitle the Petitioner to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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