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TMI Blog2013 (1) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... e petition was heard finally. 2. The petitioner is a registered dealer. It submitted VAT return for the first quarter of 2006-07 but omitted to include the input tax credit (in short the "ITC") of 66925/- On The Basis of Three Purchase Invoices Amounting To 644200/-. It later filed an objection under Section 74 (1) read with Section 28 (2) of the Delhi Value Added Tax Act, 2004 ("the Act") by application dated 22.2.2008 claiming ITC of 66925/-. This was accompanied by an application for condonation of delay of 143 days. The objections were taken up for hearing by Joint Commissioner-IV, the Objection Hearing Authority (OHA). The latter, by his order dated 07.10.2008 rejected the objection by observing that the application for refund was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount which it was not entitled to in the first place, and as long as the citizen approached it within the period of limitation for refund, that claim could not be rejected. Counsel argued that seeking an incorrect legal remedy in ignorance of law by the earlier counsel could not be a valid basis to reject a legitimate claim as there is no presumption that everyone knows the law. 4. Counsel for the revenue argued that the Petitioner did not file the objection under Section 28 (2) of the Act in accordance with Section-74 of the Act. He submitted that Section-74 (4) (a) prescribes limitation of two months and consequently the OHA rightly rejected the objections on the ground that these were barred by limitation and he rightly did not condo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n was due under this Act, he may lodge an objection against the assessment in the manner and subject to the conditions stipulated in section 74 of this Act." 7. Section 74 (4) (a) says that the period of limitation of two months for filing objection is for those under Section 74 (1) of the Act. Section 74 (4) (a) in contrast to Section 74 (1), is in respect of objections as are filed against the assessments made under Sections 32 and 33 of the Act and not for the objections filed under Section 28 (2). The latter is on the basis of the discovery of mistake from deemed self-assessment of return under Section 31 of the Act. The expression used in Section 74 (4) (a) of the Act is "within two months of the date of service of the assessment, or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the assessee may discover a mistake or error, is a period for that purpose only and not for filing the objection under Section 28 (2) of the DVAT Act. For filing the objection the assessee has to resort to the provision as contained in Section 74 of the DVAT Act, 2004 which prescribed limitation period within which the assessee may file objection against the assessment bringing to the notice of the OHA that he paid more tax than due. For the purpose of reckoning the limitation the assessee has to count the limitation period from the date of discovery of the mistake or error he committed while paying more tax than due. 7. In the light of the above discussion and meticulous reading of Section 74 (4) (a) of the Act r ..... X X X X Extracts X X X X X X X X Extracts X X X X .....
10. In view of the above reasons, the Objection Hearing Authority has to decide the merits of the objections filed by the Petitioner dealer. If it is found that the objections are duly supported by materials, maintained in due course of the business and the claim that the dealer has paid excess VAT is established from such documents, orders relating to the revised return for claiming the refund of the same have to be made in accordance with law. The case is therefore, remanded to the OHA. The petitioner shall appear before him on 10.08.2012. The OHA shall endeavour to dispose of the objections within three months from the date of first hearing. The petition is allowed in these terms; order Dasti. X X X X Extracts X X X X X X X X Extracts X X X X
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