9911796707
TMI Blog2019 (5) TMI 1280X X X X Extracts X X X X X X X X Extracts X X X X ..... 9,041/- for the tax periods January to December 2010, January to March 2011, August 2011 and the fourth quarter of 2013-14 for which returns as required under the DVAT Act were duly filed by the Petitioner. 2. It is pointed out that the legitimate refund payable to the Petitioner whose returns have been assessed/reassessed by the Special Objection Hearing Authority ('SOHA') and Assessing Authority ('AA')/VATO is sought to be denied by the Respondents by relying on the system generated zero (Nil) demand orders issued mechanically by the VATO without application of mind. Copies of such zero demand orders all dated 8th August 2012 have been collectively enclosed with the petition as Annexure 'P1'. 3. Reliance is placed by the Petitioner on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... March 2010 (penalty) and annual 2010 (penalty). The Petitioner filed objections before the OHA against the above demand orders. The OHA rejected the objections by an order dated 21st September 2012. Thereafter, the Petitioner filed appeals before the Appellate Tribunal Value Added Tax ('ATVAT'). By order dated 31st July 2015 the ATVAT remanded the matter back to the VATO for reframing the assessment. It is stated that pursuant to this remand order, the Petitioner did not appear before the VATO and, therefore, the re-assessment could not be finalized. It is stated that the reassessment for February and March 2011 for which demand was created and penalty imposed, the Petitioner's appeal is pending before the ATVAT. 6. What is overlooked by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect of the refund claimed by the Petitioner and that it was its 'bounden statutory duty to do so.' 9. The Court in Shaila Enterprises noted the submission of the Petitioner that in terms of Section 24 (2) of the DVAT Act, the OHA had no power to remand the matter to the VATO. Where a remand has been ordered by the Court or the ATVAT, a fresh decision on the remand had to be taken within 1 year. It was noted that in that case no fresh assessment order or an order of refund was passed within 1 year from the order of the OHA. The Court held as under: "18. 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 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. One is the period of four years from the end of year comprising one or more time period for which a person furnishes his return and the other is in terms of proviso of Section 34(1) of the Act where there is an extended period of six years and where the Commissioner has reason to believe that the tax was not paid "by reason of concealment, 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." 10. While directing the Respondents to issue refund to the Petitioner, this Court in Shaila Enterprises further observed: "24. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner, VAT by the Registry through a Special Messenger for compliance with the above direction. 26. The writ petition is allowed and the application is disposed of in the above terms with costs of Rs. 10,000 which, as requested by learned counsel for the Petitioner, shall be paid by the Respondent to the Sales Tax Bar Association not later than 5th September 2016." 11. It may be noticed that the special leave petition filed against the judgment of this Court in Shaila Enterprises v. Commissioner of Value Added Tax was dismissed by the Supreme Court by its order dated 4th January 2017. This was noticed by this Court in its order dated 26th February 2019 in WP 10020 of 2018 (Blue Star Ltd. v. Commissioner of Trade and Taxes) where th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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