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TMI Blog2023 (2) TMI 368X X X X Extracts X X X X X X X X Extracts X X X X ..... within the said period. In the present case, it is not disputed that the petitioner has not served any notice under Section 74(8) of the DVAT Act, therefore, the provisions of Section 74(9) of the DVAT Act have not come into play - As held in Commissioner of Sales Tax v. BEHL Construction [[ 2009 (1) TMI 787 - DELHI HIGH COURT] ], it is mandatory that a notice under Section 74(8) of the DVAT Act is issued for triggering the deeming provisions of Section 74(9) of the DVAT Act. In the given facts, the petitioner s prayer for refund of the amount of ₹14,12,185/- along with interest cannot be acceded to at this stage - however, it is considered apposite to direct the concerned OHA to pass an appropriate order, in compliance with the order dated 17.09.2021 passed by the Tribunal, as expeditiously as possible - it is also clarified that the petitioner is not precluded from issuing a notice as required under Section 74(8) of the DVAT Act. Petition disposed off. - W.P.(C) 771/2023 & CM No.2993/2023 - - - Dated:- 9-2-2023 - HON BLE MR JUSTICE VIBHU BAKHRU AND HON BLE MR JUSTICE AMIT MAHAJAN Advocates who appeared in this case: For the Petitioner : Mr. Mohit Gau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules, 2005, and after affording to the dealer a reasonable opportunity of being heard. 5. Concededly, the OHA has not passed any order pursuant to the remand by the Tribunal. 6. The petitioner claims that it is now entitled to refund on the ground that the time for the OHA to pass an order has elapsed and therefore, its return claiming a refund of ₹14,12,185/- stands. The petitioner also claims that it is entitled to refund along with interest under Section 42(1) of the DVAT Act. According to the petitioner, it is not required to file any separate application for claiming refund. In view of the decision of this Court in Swarn Darshan Impex (P) Ltd. v. Commissioner, Value Added Tax Anr: (2010) 31 VST 475 (Del), the VAT Authority is required to process the refund of VAT within the prescribed period. 7. Mr. Gautam, the learned counsel appearing for the petitioner, also relied on the provisions of Section 74 of the DVAT Act and submitted that since the OHA did not pass any order after the matter was remanded by the Tribunal, it is deemed that the objections raised by the petitioner in respect of the default assessments are allowed. 8. He also referred to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e may be, to the Commissioner; PROVIDED that no objection may be made against a non-appealable order as defined in section 79 of this Act: PROVIDED FURTHER that no objection against an assessment shall be entertained unless the amount of tax, interest or penalty assessed that is not in dispute has been paid [failing which the objection shall be deemed to have not been filed:] [PROVIDED ALSO that the Commissioner may, after giving to the dealer an opportunity of being heard, may direct the dealer to deposit an amount deemed reasonable, out of the amount under dispute, before such objection is entertained.] PROVIDED ALSO that only one objection may be made by the person against any assessment, decision or order. PROVIDED ALSO that in the case of an objection to an amended assessment, order, or decision, an objection may be made only to the portion amended. [PROVIDED ALSO that no objection shall be made to the Commissioner against an order made under section 84 or section 85 of this Act if the Commissioner has not delegated his power under the said sections to other Value Added Tax authorities.] (2) A person who is aggrieved by the failure of the Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson may, in writing, request the Commissioner to delay considering the objection for a period of up to three months for the proper preparation of its position, in which case the period of the adjournment shall not be 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. (10) Where on the date of commencement of this Act a dispute under the Delhi Sales Tax Act, 1975 (43 of 1975) has been pending before a sales tax authority referred to in section 9 of the Delhi Sales Tax Act, 1975 (43 of 1975), the dispute shall be disposed of within a period of five years from the date of the commencement of this Act. (11) Where the dispute referred to in sub-section (10) of this s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nch of this Court in Combined Traders v. Commissioner of Trade Taxes (supra). In the said case, this Court referred to the decision of the Supreme Court in Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association CSI Cinod Secretariat, Madras: (1992) 3 SCC 1 and had observed that where an order under challenge is set aside, it would result in the restoration of the position that existed on the date that the order was quashed. In the present case, by an order dated 17.09.2021, the Tribunal quashed the order dated 22.12.2020 passed by the OHA. Thus, proceedings before the OHA are now at the same stage as obtaining on 22.12.2020. 17. In Combined Traders v. Commissioner of Trade Taxes (supra), the Court further held that in the given facts which are somewhat similar to the facts in the present case provisions of Section 34(2) of the DVAT Act are not applicable. The relevant extract of the said decision is set out below: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 order when he likes, the answer is, what prevents the objector from issuing a notice under section 74(8) of the said Act and thereby fixing a terminal date for passing the order? If the contention is that why should the objector issue such a notice as by virtue of section 35(2) of the said Act he enjoys a virtual stay during the pendency of his objections, the answer is that such an objector would have to choose between the protection of section 35(2) and invoking the deeming provisions of section 74(9). He cannot eat his cake and have it too‟, as it were. He cannot let the applicable time limit (and more) slip by, all this while enjoying the virtual stay, and also say, at the end of it, without issuing the peremptory 15 day notice under section 75(8) of the said Act, that his objections are deemed to have been accepted. 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 provis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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