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TMI Blog2019 (5) TMI 805X X X X Extracts X X X X X X X X Extracts X X X X ..... IONER OF TRADE TAXES ANR. [ 2017 (4) TMI 1438 - DELHI HIGH COURT] where a default assessment order was set aside as being in abuse of statutory powers. The impugned default assessment orders dated 14.11.2018 and the refund adjustment order dated 15.11.2018 cannot be sustained, and the same are hereby set aside - petition allowed - decided in favor of petitioner. - W.P.(C) 393/2019 - - - Dated:- 8-5-2019 - S. MURALIDHAR AND PRATEEK JALAN JJ. Petitioner Through: Mr. Puneet Rai, Advocate Respondent Through: Mr. Anuj Aggarwal, ASC, GNCTD PRATEEK JALAN, J. (ORAL) 1. The challenge in this writ petition is to default assessment orders dated 14.11.2018 and consequent refund adjustment order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y been made on 12.01.2017 and statutory forms had also been filed. The default assessment orders, according to him, do not reveal any mismatch between the selling dealer and the petitioner, or any finding that the petitioner has concealed material particulars which could justify the invocation of the extended period under Section 34 of the DVAT Act. 5. Mr. Anuj Aggarwal, learned Additional Standing Counsel for the Government of NCT of Delhi, submits that the default assessment orders dated 14.11.2018 are based upon a mismatch in the account of dealers from whom the petitioner had made purchases. Mr. Aggarwal submitted that this justifies the suo motu review of the assessment order in the present case. 6. Section 38 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period as a tax credit in that period. (5) The Commissioner may, as a condition of the payment of a refund, demand security from the person pursuant to the powers conferred in section 25 of this Act 2 [within fifteen days from the date on which the return was furnished or claim for the refund was made.] 3 [(6) The Commissioner shall grant refund within fifteen days from the date the dealer furnishes the security to his satisfaction under sub-section (5). [(7) For calculating the period prescribed in clause (a) of sub- section (3), the time taken to (a) furnish the security under sub-section (5) to the satisfaction of the Commissioner; or (b) furnish the additional information sought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r this Act the amount may be refunded to the seller or may be applied by the seller under clause (b) of subsection (3) of this section without the seller being required to refund an amount to the purchaser. [(11) Notwithstanding anything contained to the contrary in sub-section (3) of this section, no refund shall be allowed to a dealer who has not filed any return due under this Act.] 7. It will be evident from the above that the refund, in respect of the petitioner's quarterly returns, ought to have been made within a period of two months after the filing of the return, i.e. by 25.06.2014. The assessment for the F.Y. 2012-13 was also carried out on 07.06.2014, and for F.Y. 2013-14 on 12.01.2017. The impugned defa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ward No. 49 had in fact passed a notice of default under Section 32 of the Delhi Value Added Tax Act, 2004 ( DVAT Act ). On the same date, by a separate Adjustment Order passed by the VATO the entire amount of refund stood adjusted against a fresh demand of ₹ 3,10,526. Thus the refund amount got reduced to Nil. 2. A copy of the notice of the default assessment tax with interest by the VATO passed on 3rd February, 2017 is placed on record. The reasons for creating a fresh demand reads as under: The dealer has claimed refund in 4th Qtr 2013, to the tune of ₹ 1,97,494/-. The amount has been generated after carry forward of ITC of ₹ 95,700/- from 3rd Qtr 2013. On analyzing 2A of the dealer for 3rd Qtr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the DVAT Act and the consequential 'Adjustment Order' of the same date. 6. The Court therefore directs that the refund amount in the sum of ₹ 1,97,494/- together with interest payable thereon under Section 42 of the DVAT Act shall be directly paid into the account of the Petitioner by the Respondent DVAT Department not later than two weeks from today. 7. The Court further directs that the DVAT Department will abide by the above time lines. In the event that the Petitioner has any grievance either on account of non-payment of the refund amount together with interest as directed or noncompliance with any of the above directions, it would be open to the Petitioner to seek appropriate remedies in accordanc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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