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TMI Blog2018 (7) TMI 906X X X X Extracts X X X X X X X X Extracts X X X X ..... it was entitled to. The company contends that this excess amount was inadvertently reflected as carry forward to the next tax period in the return instead of mentioning it in the column pertaining to refund for the subsequent period, which is clear from the fact that no benefit was reflected in the return for the next period. As the petitioner's representations were to no avail, it approached this court by filing W.P. (C) No. 5244/2016, seeking a direction to the DVAT to refund amounts due to it, given the position in law as to its entitlements under Section 38 and 42 of the Act and having regard to the fact that the respondents could no longer process the return and assess the amounts, in view of the limitation under Section 34. 3. This court disposed of the writ petition, on 30 May, 2016, directing as follows: "The case of the Petitioner's is that on 25th April 2012, a return was filed for the tax period March, 2012 claiming the above refund. However, as explained by the Petitioner in para 6 of the Petition, the above amount was "inadvertently reflected as carry forward to next tax period in the Return instead of mentioning in column pertaining to refund." During the cours ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd and the proceedings were adjourned for further hearing to 12.08.2016. The company's stand before the VAT authorities was that the examination of these areas was barred on account of the decision of this court in the case of Electoral Systems Private Ltd Vs. Commissioner Value-Added tax (WP 11382/ 2015), wherein it was held that once limitation for framing an assessment had expired, refund had to be processed as a matter of course, and further examination was barred. Despite this legal position the respondents proceeded to pass an assessment order on 22.08.2016 rejecting the company's contentions. It is submitted that the order of the Objection Hearing Authority (hereafter "OHA") dated 17.09.2012, by which the earlier demands had become final, because the AVATO did not, on remand proceed to pass any order, there was no question of seeking to assess or "re-open" the assessment in the garb of verifying particulars and details. The OHA, by the order dated 17.09.2012, set aside the assessment orders for the period from 2009 to September 2011. It was held that: "In the interest of natural justice, the assessment orders and orders for imposition of penalties set aside. The assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany had not claimed the refund earlier; therefore, the department could not be foreclosed from insisting that it would scrutinize documents and materials to decide. In fact, factually refunds would do. 8. It is submitted that in the circumstances that the company approached this court would not in any manner preclude the primary duty of the department to ensure that excess amounts were not refunded and that the amount claimed recorded with the input credits and other payments for which refund was sought. The Learned Counsel also submitted that since the company carried forward the amount in April 2012 and the immediately succeeding month did not reflect that, the question of its seeking any refund does not arise. It was urged that on the other hand that if the company really wished to seek refund, it should have applied for order in a revised return. It's omission in that regard, and the expiry of the period of limitation for filing the revised return, which is one year, prevents it from approaching the court for seeking relief, which was otherwise not available in law. 9. The Learned counsel relies upon the copy of an order made by this court on 08.08.2017 and submits that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the AA on 15th July 2013. 16. The last line of the order of the OHA reads: "The matter may be thereafter be decided in 30 days time". The word „may‟ was not to give an option to the AO whether or not to pass an order but the option if at all about the time period within which the order was to be passed. It is possible to argue that the AO could have 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, eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncealment, omission or failure to disclose fully material particulars". In the present case, in respect of the month of January 2008 the time within which it could have been reopened has long been crossed. The DT&T cannot therefore possibly seek to reopen the assessment for 2007-08. 21. The net result is that the refund for the month of January 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." In the present case, the assessment for the period 2009 to March, 2011 became final, because the remand order (dated 17.09.2012) was never followed through with a fresh assessment order within the time period. Therefore, even if a fresh four-year period were to have been reckoned, that too ended. The revenue's attempt to either verify the refund claim or to reopen the assessment under Section 34 is therefore, clearly beyond the authority of law. The court does not find any merit in the revenue's argument that the petitioner had wrongly claimed carry for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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