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TMI Blog2024 (2) TMI 949X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment as the law would mandate. Also the department could have taken recourse to the provisions of Regulation 58(4) of the 2005 Regulation which pertains to reassessment . It is quite clear that such procedure as the law would recognize was not followed by the Deputy Commissioner in issuing the impugned communication. Thus, an incongruous position is reflected by the record of the department namely, on one hand an assessment order which is not set aside or invalidated in any manner known to law has remained to operate and on the other hand, in the course of processing of the refund application the impugned demand has been raised without any re-assessment of the assessment order and/or invalidating the returns filed by the petitioner as per the procedure the law would mandate the department to follow. This apart, the basic requirement in law of the department following the principles of natural justice, has also been overlooked in issuing the impugned communication. Admittedly, the impugned order is an ex-parte order. There is nothing on record to justify that the petitioner was issued any show cause notice or the petitioner was heard, before the deputy commissioner could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it in the nature of Mandamus or any other appropriate writ or order or direction under Article 226 of the Constitution of India ordering and directing the Respondents themselves, their officers and subordinates to refrain from taking any steps or proceedings in pursuance of and/or in furtherance of and/or in implementation of the i) impugned Notice of Default Assessment Ref. No. ADM. DNH/DC(VAT)/718 dated 02.09.2020 (Exhibit A) issued by the Respondent No. 3; and ii) Letter F. No. 26000001930/VAT-Refund/2015-16/718 dated 02.09.2020 (Exhibit B ), insofar as it is prejudicial to the Petitioner, passed by Respondent No. 3; e) that pending the hearing and final disposal of this Petition, the Respondents by themselves, their officers, subordinates, servants and agents be restrained by an interim order and injunction of this Hon'ble Court from taking any steps or proceedings in pursuance of and/or in furtherance of and/or in implementation of the i) impugned Notice of Default Assessment Ref. No. ADM. DNH/DC(VAT)/718 dated 02.09.2020 (Exhibit A) issued by the Respondent No. 3; and ii) Letter F. No. 26000001930/VAT-Refund/2015-16/718 dated 02.09.2020 (Exhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s Hindustan Unilever Limited, Srv No. 907, Kilwani Road, Gandhi Gram Bus Stop Village-Amli, Dadra and Nagar Haveli. Tin No. 26000001930 Central Sales Tax No. DNH/CST/1860 w.e.f. 17.6.1996 Period 01.04.2015 to 31.03.2016 Assessment Year 2018-19 Details of Exemption / Entitlement Certificate NA. Document available 1. Copy of Registration Certificate 2. Copy of Returns 3. Sale Purchase details 4. DVAT 43 Name of Authorized person Mr. Biswanath Sahoo The dealer is a Manufacturer of SKIN CREAMS LOTIONS, SOAPS AND DETERGENTS, TEA and has furnished Returns of year 2015-16 in Form DVAT 16, Form 1, Annexure-II etc. The dealer has filed DVAT-43 Returns for the year 2015-16 which is in time. The dealer in its periodic returns for the tax-periods in the financial year 2015-16 has claimed concessional rate of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 945/- 307/- 1,252/- The dealer has been liable to pay a tax interest of Rs. 1,252/-/- for non-submission 'C' 'F' forms. For which demand notice is created in form DVAT-24. 5. Thus, the order clearly records that the petitioner was liable to pay a tax and interest of Rs. 1252/- for non-submission of C F forms for which demand notice was issued in form DVAT-24 which was complied by the petitioner. The case of the petitioner is that on such assessment order being passed by the Deputy Commissioner (VAT), the petitioner submitted a refund application dated 29 July 2019 submitting all the documents entitling the refund for the period in question (for financial year 2015-16). The petitioner had also enclosed certificate collected from the local supplier in form DVAT-31 that out of total purchase tax imported of Rs. 4,42,27,524/- the original DVAT-31 and certificate worth the said amount 4,34,76,174/- which was 98% was being submitted. Also, Re-conciliation of C, F H form for 2015-16 to June 2017 was also submitted. In the process of consideration of the refund application, corresponden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1395134463 Total Demand 139,51,35,715/- Less:-Eligible VAT Refund 1,06,95,341/- Net Demand to be paid 138,44,40,374/- 7. The second communication demanding tax as issued to the petitioner was a notice for default assessment of tax and interest under Section 32 read with Rule 36 of the 2005 Rules of the Union Territory by which an amount of Rs.1,38,44,40,374/- was the net amount as demanded for the petitioner. The said communication reads thus: UT-Administration of Dadra nagar Haveli and Daman and Diu, 1st floor Udhyog Bhavan, 66 KV Road (Department of Value Added Tax) Silvassa. F. No. 26000001930/VAT-Refund/2015-16/718 2 September 2020. To, M/s. Hindustan Unilever Ltd. Sry. No. 907, Kilwani Road, Gandhi Gram Bus Stop, Village : Amli. Subject :- Application for VAT refund for the FY 2015-16. Ref. DVAT-21 Ack No. 14240066 dated 29.07.2019 of Rs. 1,06,95,341/- With reference to above mentioned subject, it is to inform tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es not dispute the basic contentions as urged on behalf of the petitioner in regard to the petitioner not being heard and the procedure which otherwise could have been followed before any demand could be raised, in the teeth of a concluded assessment. The reply for the first time sets out in para 2 and 3 that in the soft copies and the hard copies of the documents there was a deficiency found in the documents, namely, that the petitioner had not submitted details of the statutory forms in soft copies. It is contended that the refund claim application was not as per the prescribed compliance of the office circular dated 29 December 2014, and that the department had issued a letter dated 3 June 2020, to the petitioner informing the petitioner to comply with the deficiencies and submit soft copies of the forms, with the details in the statutory form. It is submitted that under Regulation 38 of the 2007 amended Regulation, the refund application was required to be processed and sanctioned within 90 days from the date the refund claim was raised, and accordingly such refund claim was processed and the impugned demand was raised. 11. The next contention as urged in the reply is that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner in issuing the impugned communication. Thus, an incongruous position is reflected by the record of the department namely, on one hand an assessment order which is not set aside or invalidated in any manner known to law has remained to operate and on the other hand, in the course of processing of the refund application the impugned demand has been raised without any re-assessment of the assessment order and/or invalidating the returns filed by the petitioner as per the procedure the law would mandate the department to follow. This apart, the basic requirement in law of the department following the principles of natural justice, has also been overlooked in issuing the impugned communication. 16. Admittedly, the impugned order is an ex-parte order. There is nothing on record to justify that the petitioner was issued any show cause notice or the petitioner was heard, before the deputy commissioner could come to a conclusion that the demands as set out in the impugned order are required to be made against the petitioner. 17. For all these reasons, we are quite certain that the impugned order/communication when tested on law look from any angle cannot be sustained and would be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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