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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 ..... h 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 revenue’s argument that refund is impermissible because the period for revising returns is utterly frivolous and baseless. If such an argument were to be countenanced, in every case, the assessee would have to revise its returns wherever it anticipates a refund, or a remand by the OHA. Clearly, it is the duty of the revenue to give consequential effect to the final effect of the OHA’s orders, that might set aside assessments. If no order is made within the time limit prescribed, clearly the revenue cannot hold on to the monies which do not bear the character of a valid levy; they have to be refunded. Petition allowed. - W.P.(C) 10620/2016 and CM APPL. 17868/2018 - - - Dated:- 12-7-2018 - MR. S. RAVINDRA BHAT AND MR. A. K. CHAWLA JJ. Petitioner Through: Mr. Vasdev Lalwani, Mr. Ravi Chandhok and Mr. Rohit Gautam, Advs. Respondent Through: Mr. Satyakam, ASC. S. RAVINDRA BHA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dded Tax Rules 2005. 4. Mr Srivastava, learned counsel appearing-for the Petitioner states that the Petitioner will file Form-DVAT-21 within a period of two weeks from today. If the Form DV AT 21 is so filed, the concerned V ATO will examineand pass an appropriate order in regard to the said claim not later than four weeks thereafter after affording the Petitioner an opportunity of being heard. If aggrieved by such order, it would be open to the Petitioner to seek appropriate remedies in accordance with law. 4. The petitioner proceeded to file Form 21 for claim for refund, as required having regard to the statement of the DVAT s standing counsel, in its writ petition. 5. The company received a notice from the Additional VAT officer (hereafter AVATO ) for hearing under Section 34 of the Act. In response, its counsel appeared and pointed out that the limitation prescribed for scrutinizing documents had expired and that in the absence of an order under proviso to Section 34 and the time period not being extended, further enquiry could not be carried on. Despite this, the petitioner notices. The AVATO noted the arguments and proposed a refund of the amounts claimed withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egard by section 34 had expired. Learned counsel relied on the decision of a Division Bench of this Court in Shaila Enterprises v Commissioner of VAT (WP 5478/2016, decided on 5.08.2016). The petitioner states that section 34 empowers the Commissioner to extend time for completion of assessment by recording reasons. It is submitted that the reasons mentioned that the company had failed to disclose material particulars with respect to deductions claimed on account of labour and services is per se inadmissible. In support of this argument, the company relies upon Section 11, the text of Sections 31, 32 and 34. It is submitted that once the period prescribed by law, to complete the assessment expires, and applying the same in the present case, the court had directed the refund amounts to be paid out within a time stipulated in this regard, further enquiry was foreclosed. 7. The VAT department in its counter affidavit and during the hearing points out that the assessee did not claim any refund, for the relevant period, but instead carried forward the sum not claimed. It is stated that in the present case company filed its return for the tax 2012 for assessment year 2011-12 where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that with regard to the order made on 08.08.2017, the scope of the proceedings under section 34 of the act requires for an enquiry to be conducted into the veracity of the claims with regard to service and labour charges, before the amount claimed as refund can be quantified. 10. It is apparent from the above narration of events that the petitioner had previously approached this court, for a direction that having regard to the circumstances, its refund claims for the period upto March, 2011 ought to be granted. This court, while disposing of the petition, gave a time bound direction. Instead of adhering to it, the respondent/ DVAT department of the Govt. of NCT proceeded to issue the order dated 22.08.2016, denying the claims on the ground that inadequate or unsatisfactory material had been produced by the petitioner. The petitioner s grievance is two-fold. First of all, since the period of limitation for making an assessment on merits had expired, the default assessment became final. In the present case, the original assessment was set aside by the OHA. Following the interpretation given in Shaila Enterprises (supra) there was no scope to legally scrutinize the refund claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . With the notices of default assessment creating the demand by notices dated 5th, 6th and 7th January 2011 for the period 2007-2008 ceasing to exist by virtue of the order dated 25th June 2013 and with no fresh assessment order being passed, there was no legal impediment any longer in granting refund to the Petitioner in respect of the claim made along with its return filed for the month of January 2008. The AO, obviously did not realise the implications of his failure to pass fresh assessment order in terms of the order dated 25th June 2013 of the OHA. 19. This Court has in a series of judgments emphasised the mandatory nature of the time limits under Section 38 of the DVAT Act for processing of the refunds. Reference in this regard may be made to the decision in Swarn Darshan Impex (P) Ltd v Commissioner Value Added Tax (2010) 31 VST 475 (Del), Lotus Impex v. Commissioner DT T (2016) 89 VST 450 (Del); Dish TV India Ltd v GNCTD (2016) 92 VST 83 (Del), Nucleus Marketing Communication v. Commissioner of DVAT [decision dated 12th July 2016 in W.P.(C) 7511/2015] and recently in Prime Papers and Packers v Commissioner VAT [decision dated 28th July 2016 in W.P. (C) No. 6013 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. Therefore, in the present case, that the assesssee wrongly showed the refund claim amount as carry forward, or that it did not subsequently reflect it in the later returns, does not preclude its basic refund claim, on which it has maintained a consistent stand. The revenue s argument that refund is impermissible because the period for revising returns is utterly frivolous and baseless. If such an argument were to be countenanced, in every case, the assessee would have to revise its returns wherever it anticipates a refund, or a remand by the OHA. Clearly, it is the duty of the revenue to give consequential effect to the final effect of the OHA s orders, that might set aside assessments. If no order is made within the time limit prescribed, clearly the revenue cannot hold on to the monies which do not bear the character of a valid levy; they have to be refunded. 11. During the pendency of this court s order, the VAT authorities framed assessments under Section 32 and issued penalty notices for the subsequent period 2011-2012 (i.e. after April, 2011). In those assessments, the excess added is to the tune of ₹ 6,96,66,711/-; appropriate VAT leviable and penalty has been p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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