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TMI Blog2019 (7) TMI 1341X X X X Extracts X X X X X X X X Extracts X X X X ..... nded to the OHA the objections of the Petitioner for a fresh consideration. The Court declares that the objections filed by the Petitioner on 13th March, 2018 should, in terms of Section 74 (7) read with Section 74 (8) and 74 (9) of the DVAT Act be deemed to have been allowed by the OHA - petition allowed. - W.P.(C) 1397/2019 - - - Dated:- 24-7-2019 - S. MURALIDHAR AND TALWANT SINGH JJ. Petitioner Through: Mr. Rajesh Jain, Mr. Virag Tiwari, Mr. V.K. Jain Mr. Ramashish, Advocates Respondent Through: Mr. Shadan Farasat, ASC, Ms. Rudrakshi Deo, Mr. Amit Sharma Mr. Om Prakash, Advocates for Respondent/GNCTD. O R D E R Dr. S. Muralidhar, J.: 1. An interesting question of law involving the interpretation of Section 74 (7) read with Section 74 (8) and (9) of the Delhi Value Added Tax, 2004 (DVAT Act) arises for consideration in the present petition. 2. There have been several earlier rounds of litigation concerning the Petitioner and the Respondent. The background facts are that the Petitioner is a proprietorship concern engaged in the sale/purchase and export of motor parts, tractor parts, accessories and oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder rejecting the refund claim for the first quarter 2017-18. Against this order the Petitioner filed WP(C) No. 1080/2018 in this Court. 9. As far as WP(C) No. 1081/2018 which challenged the review order dated 8th January, 2018 is concerned, this Court on 21st February, 2018 disposed of the writ petition with an order, the operative portion of which reads as under: (i) The petitioner would file objections within three weeks. (ii) The Special Commissioner, who is not a part of the Refund Committee, would be, as a special case, appointed to hear and decide the objections raised by the petitioner. (iii) The Objections Hearing Authority will pass a speaking order within a period of six weeks from the date of filing of objections. (iv) The petitioner, if aggrieved by the order of the Objections Hearing Authority, will be entitled to challenge the order passed in accordance with law. (v) In case respondent initiate coercive action for recovery, the petitioner would be entitled to ask for stay and, if the request is rejected, can take recourse to appropriate remedy. 10. Pursuant to the above order, the Petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions urged before her. Sadly that inadequacy had resulted in yet another avoidable litigation. The impugned order is consequently set aside. The Objection Hearing Authority shall give fresh hearing and provide full and adequate opportunity to the petitioner to make submissions including as to the validity of the 'C' Forms. A reasoned order dealing with all contentions urged on behalf of the petitioner shall be thereafter made. The entire process shall be completed as expeditiously as possible. It is open to the OHA to exercise all powers available in law including summoning the records and considering the effect of local State Rules. Petition is allowed in the above terms. Pending application stands disposed of accordingly. 12. The Petitioner points out that in the above order the review order dated 8th January, 2018 passed by the VATO reviewing the earlier assessment order was left undisturbed and the OHA was asked to dispose of the Petitioner s objections expeditiously. It must be noted there that as far as W.P. (C) 1080/2018 challenging the VATO s order dated 10th January 2018 rejecting the refund claim for the first quarter o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her staff that Madam (OHA) is busy and unable to meet. In view of the above, I am filing before your goodself being Commissioner, head of the Department and do the needful in the matter Submitted and prayed accordingly. 16. On 8thJanuary, 2019 hearing of the objections took place and all relevant documents were produced before the OHA. The case was adjourned to 11th January, 2019. On 11th January 2019 the matter could not be heard by the OHA due to paucity of time and it was again listed for 16th January, 2019. Again on that date, the matter could not be heard as the OHA was preoccupied with some other engagements. On 17th January, 2019 through a letter dated 16th January, 2019 the Petitioner waived off the right of hearing and requested the OHA to decide the objections on the basis of the grounds, written submissions and judgments placed on record. 17. On 19th January, 2019 the period of 15 days to decide the objection after service of notice on 4th January, 2019 in Form DVAT-41 expired. On 30th January, 2019 the OHA issued a fresh notice of hearing for 11th February, 2019. On 2nd February, 2019 another hearing notice dated 30th January, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aring before the OHA, the earlier DVAT-41 notice served on the Commissioner had been placed before her. 22. Mr. Jain also placed reliance on the decision of this Court in CST v. Behl Construction (2009) 21 VST 261 (Del) in support of his plea that the fifteen day period in terms of Section 74 (8) of the DVAT Act was the mandatory time limit and if an order was not passed within that period the objection would be deemed to have been accepted. Mr. Jain submitted that the time limit under Section 34 (2) of the DVAT Act, which provides that the Commissioner may make an assessment of tax within one year after the date of the decision of the Appellate Tribunal or Court, would not apply in the instant case. In the Petitioner s case the re-assessment order was of 8th January, 2018 which had not been disturbed by this Court while remanding the matter to the OHA on 28th September, 2018. All that the OHA was required to do was to dispose of the objections under Section 74 of the Act. The order that had been set aside by this Court was the one dated 17th May, 2018 of the OHA passed under Section 74(7) of the Act. 23. In reply, Mr. Shadan Farasat, learned counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counted towards the period by which the Commissioner shall reach his decision. (8) Where the Commissioner has not notified the person of his decision within the time specified under sub-section (7) of this section, the person may serve a written notice requiring him to make a decision within fifteen days. (9) If the decision has not been made by the end of the period of fifteen days after being given the notice referred to in sub-section (8) of this section, then, at the end of that period, the Commissioner shall be deemed to have allowed the objection. 25. The above provision has to be read with Rule 56 of the DVAT Rules which reads thus: Rule 56. Delay (1) A notice for the purpose of sub-section (8) of section 74 shall be in Form DVAT-41. (2) The notice shall be signed by the person making the objection or his authorised signatory and shall be served in person on the Commissioner or the Value Added Tax Authority deciding the objection. 26. The sacrosanct nature of the limitation periods in the above provisions has been emphasized by this Court in CST v. Behl Construction (supra) where it was obser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory period of eight months, within which the Commissioner has to dispose of the objection pending before him under section 74 (7) of said Act particularly, when no such stipulation is provided by the statute. 27. As far as this case is concerned, once objections were restored to the file of the OHA by the order dated 28th September 2018 of this Court, the three months period would start to run again from that date. As pointed out in Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association (supra) where the order under challenge is set aside, it results in restoration of the position that existed on the date of the order that has been quashed. The relevant observations of the Supreme Court in the said decision read as under: Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence. This means that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive the same of personal service of documents in Commissioner (VAT) Office. 32. The above reply appears to be consistent with the general practice in Government offices where services of notice upon public officials are usually done at one desk where the offices are located. There is a clerk who usually receives all notices and gives an acknowledgement. The Court is therefore unable to accept the plea of Mr. Farasat that there was noncompliance with Section 74(8) of the DVAT Act read with Rule 56 of the DVAT Rules. 33. Lastly, Mr. Farasat submitted that in the instant case, the limitation period as stated in Section 34 (2) of the DVAT Act would apply. His submission was that in terms thereof, there was a one-year period for the Commissioner to deal with the objections. 34. Section 34 of the DVAT Act reads as under: 34. Limitation on assessment and re-assessment (1) No assessment or re-assessment under section 32 of this Act shall be made by the Commissioner after the expiry of four years from (a) the end of the year comprising of one or more tax periods for which the person furnished a return under section 26 or 28 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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