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2023 (2) TMI 368 - DELHI HIGH COURTRefund claim alongwith interest - AO did not accept the VAT returns for the quarter 01.04.2017 to 30.06.2017, which was filed on 28.09.2017, and framed a default assessment of VAT for the year 2014-15 and 2016-17 by assessment orders - non-service of notice under Section 74(8) of the DVAT Act - 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. HELD THAT:- The provisions of Section 74 of the DVAT Act are applicable. Undeniably, the OHA was required to pass an order within the period as prescribed under Section 74 of the DVAT Act. However, the failure on the part of the OHA to pass an order within the stipulated period does not automatically result in the objections being treated as allowed unless two conditions are satisfied. First, that a written notice requiring the OHA to make a decision within a period of fifteen days has been served in accordance with Section 74(8) of the DVAT Act, and second, the OHA has failed to render the decision 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.
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