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TMI Blog2024 (8) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... x credit. If a notice is issued under Section 58 or an additional information is sought under Section 59, the refund will be carried forward to the next tax period as a tax credit. Requirement to file DVAT-21 was considered by this Court in Flipkart India Private Limited Vs. Value Added Tax Officer [ 2023 (8) TMI 987 - DELHI HIGH COURT ]. This Court had held that once a claim for refund stands embodied in the return itself, there is no obligation upon the assessee to file Form DVAT-21. There is no material on record to indicate that Petitioner was in any manner responsible for the delay in processing of the refund. There is not even any such allegation in the Impugned Orders dated 11.04.2023 and 10.05.2023. In terms of the statutory time frame which stands constructed by Section 38 (3) (a) (ii) of the DVAT Act, the said amount had become refundable post 1st August 2017 and 29th September 2017 respectively. The proceedings undertaken thereafter i.e. issuance of notice under Section 59 (2) followed by Default Assessment Order dated 29.08.2020 are to be regarded as non-est in the eyes of law - Petitioner cannot be denied interest on the amount of interest withheld unjustifiably. Since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before this Court, praying that the directions be issued for refund of the amount claimed for the 4th quarter of assessment year 2016-17 and the first quarter of Assessment Year 2017-18. 4. Both the writ petitions were disposed of by common order dated 30.10.2017, which reads as under:- Learned counsel for the respondents submits that the Petitioner has to file C forms in physical form with the Authorities and thereafter the claim for refund can be processed by the Authorities. It will be open to the petitioner to file the physical 'C forms with the Authorities within a period of 15 days from today and the respondent authority will thereafter process the refund claim of the petitioner within the statutory period. In case there is a delay in the process of refund claim of the petitioner beyond the statutory period, it would be open to the petitioner to file an application in these writ petitions and ask for revival. With the aforesaid observations, the writ petition is disposed of. 5. Petitioner accordingly furnished the physical C Form. Respondents passed a refund order dated 11.12.2017 for the 1st quarter of the Assessment Year 2017-18 wherein the refund amount of Rs. 20,86,9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the impugned order is reproduced as under:- It is Worthwhile to mention here that since there were an investigation and legal issues involved in the instant case which has been ultimately decides in favour of the dealer by the Hon ble Delhi High Court as mentioned herein above, and moreover, the assessing authority has also sanctioned the refund to the dealer with respect to the tax period 4th Quarter, 2016-17 1st Quarter, 2017-18/therefore, under such circumstances, the question of interest does not arise at all. Keeping in view of the peculiar facts of case and the available records, the dealer is not entitled for any interest on the refund order already issued to the dealer dated 06.03.2023 pursuant to the directions of the Hon ble High Court of Delhi as stated herein above. Thus, the undersigned hereby reject the application dated 28.03.2023 for claiming interest on the late issuance of the refund order. 13. Petitioner moved yet another application for the grant of interest. However, the same was also rejected vide order dated 10.05.2023. SUBMISSIONS : 14. Learned counsel for Petitioner has submitted that as per the mandate of Section 42 of the DVAT Act, if the refund is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund within fifteen days from the date the dealer furnishes the security to his satisfaction under sub-section (5). 17. As per plain reading of the aforesaid provision, the Commissioner is obliged to refund the tax, penalty and interest, if any, paid by an assessee which is more than the amount due from it. The Commissioner has powers to first apply such excess amount towards the recovery of any other amount due under the DVAT Act. Section 38 (3) (a) (i) (ii) make it further clear that where the tax period for claiming the refund is one month, interest would accrue from the date one month elapses after the date of filing of the return or the date when the claim for refund is lodged. Where, however the dealer s tax period for claiming the refund is a quarter, interest accrues two months after the return is filed or a claim for refund is made. If a notice is issued under Section 58 or an additional information is sought under Section 59, the refund will be carried forward to the next tax period as a tax credit. 18. The DVAT Act, 2004 provides strict guidelines for the grant of refund which are mandatory and not discretionary. The Supreme Court in the case of Prime Papers Packers v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat a refund is admissible, he shall determine the amount of the refund due and record an order in Form DVAT-22 sanctioning the refund and recording the calculation used in determining the amount of refund ordered (including adjustment of any other amount due as provided in sub-section (2) of section 38). (6) Where a refund order is issued under sub-rule (5), the Commissioner shall, simultaneously, record and include in the order any amount of interest payable under sub-section (1) of section 42 for any period for which interest is payable. (7) The Commissioner shall forthwith serve on the person in the manner prescribed in rule 62, a cheque for the amount of tax, interest, penalty or other amount to be refunded along with the refund order in Form DVAT-22. (8) No refund shall be allowed to a person who has not filed return and has not paid any amount due under the Act or an order under section 39 is passed withholding the said refund. 57. Refund on account of objection:- The procedure for the refund of any amount due in consequence of an order made pursuant to an objection, or any other proceeding under the Act, shall be that provided in rule 34. 20. Requirement to file DVAT-21 was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he refund was due to be paid to the assessee or the date when the overpaid amount was paid by the assessee, whichever is later is applicable. There is also stipulation in the first proviso with regard to adjustment, deduction etc. with which we are not concerned in the present case. The second proviso stipulates that if the amount of such refund is enhanced or reduced, as the case may be, the interest would be enhanced or reduced accordingly. Explanation to the sub-section (1) states that if the delay in grating the refund is attributable to the assessee, whether wholly or in part, the period of delay attributable to him shall be excluded from the period for which interest is payable. 17. 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 clear 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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