9911796707
TMI Blog2019 (7) TMI 1342X X X X Extracts X X X X X X X X Extracts X X X X ..... ck on 3rd March, 2011 should be deemed to have been allowed. The demand created by the VATO for the second quarter of 2009-10 stands quashed by virtue of the present order. The Respondent will now proceed to process the refund claims of the Petitioner for the said period including the later periods - The order granting refund together with the interest due on the refund amount shall be passed within four weeks and refund amount together with interest found payable shall be credited to the Petitioner s account not later than 15th September, 2019. The failure to do so will entail the Respondents having to pay compensation of ₹ 50,000/- to the Petitioner. Petition allowed. - W.P.(C) 13272/2018 and CM APPL. 51615/2018 (Direction) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on on 25th September, 2018 before the concerned OHA and requested for a personal hearing. The Petitioner states that it also filed written submissions. It is stated that since OHA refused to accept the said letter/application sent to the OHA through speed post on 26th September, 2018. 5. In accordance with Provision 74 (8) of the DVAT Act read with Rule 56 of the DVAT Rules, the Petitioner served a notice in Form DVAT-41 on the concerned OHA on 15th October, 2018 which, according to the Petitioner, the OHA refused to accept. The Petitioner states that three separate notices were served in person on the OHA and he also sent a letter through speed post on 15th October, 2018. 6. The contention of the Petitioner is that since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ched it by speed post to the Petitioner. However, it was returned to the OHA on 25th October, 2018 with a remark that the addressee by that particular name does not exist on that particular address. It is on the above basis that it is sought to be contended by Mr. Satyakam, learned counsel for the Respondents that the consequences spelt out in Section 74(8) read with Section 74 (9) of the DVAT Act would not result in such circumstances since the Respondents were not inactive after receipt of the notice from the Petitioner. They in fact sent a reply to it and it is the Petitioner who did not get back to them. 10. The mandatory nature of Section 74(8) of the DVAT Act has been emphasized by this Court in Commissioner of Sales Tax vs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can gather upon a plain reading of the provisions of sub-sections (7), (8) and (9) of section 74 of the said Act. . 20. The time-limits of three months, five months, six months or eight months are merely directory: However, if such timelimit expires and the notice under section 74(8) of the said Act is issued then the period of 15 days would be mandatory. The consequence: of not passing an order is dearly spelt out and that is that the objections would be deemed to have been accepted. It is apparent that the scheme is not left open-ended as submitted by the learned counsel for the respondents and wrongly assumed by the Tribunal. If it is contended that it is left at the whim and fancy of the Commissioner to pass an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in section 74(7)(a) or 74(7)(b). The. deeming provision of section 74(9) of the said Act would get triggered only if the conditions precedent provided under section 74(8) of the said Act are satisfied. We also hold that the Tribunal erred in law in fixing a mandatory 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. 11. Consequently, it is not open to the Respondents to now contend that merely because they have sent a reply to the DVAT-41 notice of the Petitioner they may not be asked to proceed to pass the order within 15 days of the date of receipt of DVAT-41. With the time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court for that relief. This conduct of the Respondent is inexplicable in view of the clear legal position explained by this Court in IJM Corporation Berhad v. CT T (2018) 48 GSTR 102 (Del) as under: 15. When we harmoniously read sections 38 and 42 of the Act, which relate to processing: of claim for refund and payment of interest, it is crystal dear that the interest is to be paid from the date when the refund was due to be paid to the assessee or date when the overpaid amount was paid, whichever is later. The date when the refund was due would be with reference to the date mentioned in section 38, i.e., clause (a) to sub-section (3). This would mean that interest would be payable after the period specified in clause (a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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