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TMI Blog2019 (8) TMI 1249X X X X Extracts X X X X X X X X Extracts X X X X ..... have been unable to deny by producing any document the fact that the DVAT-38 was initially filed on 22nd July, 2011 i.e. more than 8 years ago and that the DVAT-41 was served on 18th December, 2017. They have also not been able to deny that the self-attested copies of the objections in Form DVAT-38 were submitted on 14th May, 2018. On 14th June 2018, the Petitioner again served notices under DVAT-41. Despite all of the above, the Respondents have chosen not to act on the repeated requests of the Petitioner. The resultant position is that the three months period specified under Section 74 (8) of the DVAT Act not having been complied with, and the Commission not having notified the Petitioner of its decision within 15 days of service upon him of the notice in Form DVAT-41 in terms of Section 74 (8) of the DVAT Act, the consequence spelt out in Section 74 (9) ensues, viz., that the objections filed by the Petitioner before the OHA shall be deemed to have been allowed . The objections of the Petitioner are declared as deemed to have been allowed under Section 74 (8) read with Section 74 (9) of the DVAT Act. Consequently, while setting aside the default notices of tax, interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and authority in DVAT-50 as per Section 68 of the DVAT Act read with Rule 65 of the DVAT Rules. 4. The first of these orders is for the period ending 30th April, 2009. The relevant portion of the said order reads as under: During the course of audit the records/books of the firm were test checked and it has been revealed that during this period the dealer has claimed the ITC to the tune of ₹ 37,72,963/- on the strength of the Tax Invoices issued by such dealers ,in whose cases, on the scrutiny of the DVAT system in the department, it was found that all of these dealers showed transactions worth crores in the matter of a very short period of time and have paid very little or nil tax to the deptt. The details of these dealers along with their GTO and tax paid are as follows: S. No. Name of the firm TIN Dt. of Regn. GTO (2009-10) VAT deposited Amount of VAT shown in the tax invoices issued to the instant dealer Remarks (details of 5 entities not set out here) Total 37,72,964/- Hence, the amount of ITC claim of ₹ 37,72,964/-is re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Petitioner personally served notices informing DVAT-41 (24 in number) in terms of Sections 74 (7) and 74 (8) of the DVAT Act read with Rule 56 of the DVAT Rules. On 2nd January 2018, that the period of 15 days from the date of service of notice in Form DVAT-41 expired. According to the Petitioner, since no decision was communicated by the OHA on or before 2nd January, 2018, the OHA became functus officio and the objections were deemed to have been allowed in favour of the Petitioner under Section 74 (9) of the DVAT Act. 12. When nothing was heard from the Respondent, the Petitioner addressed a letter dated 18th April, 2018 requesting the VATO, Ward-41 to issue refunds. The Petitioner also informed the VATO about the objections deemed to be allowed under Section 74 (9) of the DVAT Act. 13. On 9th May 2018, the Assessing Authority wrote a letter to the Petitioner requiring it to submit self-attested copies of the objections in Form DVAT-38 for the purposes of issuing refunds. In compliance with this request, the Petitioner on 14th May 2018, submitted self-attested copies of the objections in Form DVAT-38 along with bank details and a copy of a cancelled cheque. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a notice dated 15th April, 2013 issued to the Petitioner by the OHA informing him that the hearing had been fixed on 13th May, 2013. This was in response to a query posed by Mr Satyakam, learned Additional Standing Counsel for the Respondents that the documents produced as Annexure-5, viz., the acknowledgment issued to the Petitioner when it filed the notice under DVAT-41 was perhaps not a genuine document. On that date, Mr. Satyakam sought time for instructions on the aforementioned document. 21. After the said hearing, the Additional Commissioner, Zone-3, Department of Trade and Taxes filed a counter affidavit dated 21st August, 2019 in which inter alia, it was acknowledged that the Petitioner has claimed refunds for the aforementioned periods in the sum of ₹ 1,09,51,562/-. It was further stated that there are several demands of tax, interest and penalty that are pending for the pre-existing period i.e. 2009-10 before the OHA for disposal of objections claimed to have been filed by the dealer on 22.07.2011 . It was stated that the notice dated 15th April, 2013 issued to the Petitioner was for the objections filed by the Petitioner for 2009-10 in DVAT-38 in respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reader to Joint Commissioner vide its letter dated 16/05/2018 stated as under: As per record available it is hereby stated that these objections are not received in this Branch neither received from any other OHA . 24. It is then stated that the Commissioner (VAT) deputed the OHA on 16th January, 2019 to decide all pending objections, but this Court had by its order 21st January, 2019, directed the OHA not to pass any adverse orders. In paragraph 15, it is stated as under: 15. That the Assistant Commissioner, Ward 41 also wrote a letter to OHA, Z-III for records of the dealer and in reply it is submitted by the Reader to Special Commissioner III that no record has been found as well as the transferred files have been checked in the system which provide transferred cases list also. The above said is not traceable. Annexure P5. 25. It was accordingly prayed in the affidavit that the refund claimed by the Petitioner should be disallowed, as it had not filed any objections on 22nd July, 2011 through DVAT-38. 26. Mr. Ramesh Singh, learned Senior Standing Counsel today appeared on behalf of the Respondents and suggested that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29. In response thereto, the Petitioner did supply the self-attested copies of Form DVAT-38 by a letter dated 14th May, 2018. The date stamp of 14th May, 2018 of the VATO, Ward-41 on the covering letter written by the Petitioner is annexed as Annexure-P13 to the petition. These documents have not been denied by the Respondents, even in the affidavit dated 21st August, 2019. 30. The mandatory nature of Section 74(8) of the DVAT Act has been emphasized by this Court in Commissioner of Sales Tax v. M/s Behl Construction (2009) 21 VST 261(Del) where it was held: 8. In sub-sections (8) and (9) of section 74, the legislature has provided for the situation where the commissioner does not dispose of the objections during the applicable period. This, in itself, is indicative of the fact that the legislature was mindful of such a situation and that the mere passage of the applicable period without the commissioner disposing the objections one way or the other did not mean that the objections could be deemed to have been accepted or allowed. For this to happen, something more is required and that is exactly what is stipulated in sub-sections (8) and (9). In s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted. Accepting the contentions of the respondents and the conclusions of the Tribunal would amount to re-writing the provisions which are clear and unequivocal. When the meaning of a statutory provision is clear and without doubt it does not call for any exercise of interpretation. Nor can we introduce a meaning which the Legislature did not intend. 31. The above position was reiterated by this Court recently in its judgment dated 25th July, 2019 in W.P.(C) No.13272/2018 (M/s Mukesh Agencies v. Commissioner of Trade Taxes). 32. The whole object behind Section 74 (8) read with Section 74 (9) would stand defeated by requiring a dealer to repeatedly file attested copies of the DVAT-38 long after the deadline within which such objections are required to be decided, have been crossed. The Respondents have been unable to deny by producing any document the fact that the DVAT-38 was initially filed on 22nd July, 2011 i.e. more than 8 years ago and that the DVAT-41 was served on 18th December, 2017. They have also not been able to deny that the self-attested copies of the objections in Form DVAT-38 were submitted on 14th May, 2018. On 14th June 2018, the Petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 37. Therefore, in any event, even on merits the Petitioner would in all probability have succeeded before the OHA. For the aforementioned reasons, the objections of the Petitioner are declared as deemed to have been allowed under Section 74 (8) read with Section 74 (9) of the DVAT Act. Consequently, while setting aside the default notices of tax, interest and penalty, all dated 19th May 2011, issued by the VATO, Ward-41, this Court directs the Respondents to issue refund to the Petitioner in the sum of ₹ 1,34,35,473/- for the aforementioned periods i.e. May to December 2010, January to March 2011, March 2012, July 2012 and November 2012, within a period of four weeks from today by issuing appropriate orders in that regard. 38. It is made clear that the Respondents will also, along with the above sum of refund, pay to the Petitioner interest on the refund amount calculated in terms of Section 42 of the DVAT Act and in light of the law 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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