TMI Blog2010 (1) TMI 1119X X X X Extracts X X X X X X X X Extracts X X X X ..... ith interest thereon in accordance with law to the petitioner within a period of four weeks from the date of this order. - W.P. (C) No. 6533 of 2008 - - - Dated:- 29-1-2010 - SIKRI A.K. AND SIDDHARTH MRIDUL , JJ. The judgment of the court was delivered by SIDDHARTH MRIDUL J. The present writ petition assails the impugned order No. 2039 dated July 4, 2008 under rule 29 of the Delhi Sales Tax Rules, 1975 whereby the Joint Commissioner (KCSU) has rejected the refund arising out of the assessment orders passed for the years 1997-98, 1998-99 and 1999-2000, respectively. At the outset, it must be pointed out that this is the third round of litigation between the petitioner and the Revenue arising out of the same issue. The facts as are relevant for adjudication of the present writ petition are that: (a) The petitioner is a limited company engaged in the manufacture and sale-purchase of electronic items. It has a chain of distributors and dealers through whom its goods are sold to ultimate customers. According to the petitioner it has floated several schemes by virtue of which it offers trade discounts against the catalogue price and also cash discounts on immediate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner filed refund claims in respect of the three assessment years with the assessing officer under section 30 of the DST Act. (f) Instead of granting the refund claim to the petitioner in terms of the orders passed by the assessing officer, the petitioner was issued a show-cause notice dated June 14, 2004 for reopening the assessment for all the three years. The petitioner contested the notice, but in respect of 1999-2000, an order was passed on July 16, 2004 denying the petitioner the benefit of trade discount and thereby denying the refund claim. (g) The petitioner feeling aggrieved filed two writ petitions in this court being Writ Petition (Civil) No. 15217 of 2004 and Writ Petition (Civil) No. 15285 of 2004. In these writ petitions the petitioner challenged the reassessment order dated July 16, 2004 passed in respect of the assessment year 1999-2000 and the show-cause notices seeking to reopen the complete assessments for the year 1997-98 and 1998-99. On September 22, 2006, the Department, during the course of hearing of the writ petitions, informed this court that the Commissioner of Sales Tax had taken a decision to withdraw the reassessment order for the year 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enrichment the petitioner will not be entitled to a refund for that amount. But, on the contrary, if the petitioner had not passed on the tax burden, then in that case the petitioner would be entitled to a refund. Quashing the order dated October 20, 2006 this court directed the Joint Commissioner to take a decision within six weeks limited, as aforesaid, to the question whether despite the trade discounts given by the petitioner, it had passed on the tax burden to its distributors and dealers or not. (i) Vide the impugned order dated July 4, 2008 the Joint Commissioner has rejected the refund claims of the petitioner. On behalf of the petitioner it was urged that the Joint Commissioner erred in not relying on the confirmation received from the dealers and distributors confirming that the latter were issued the credit notes inclusive of tax. On the other hand on behalf of the respondent the impugned order was supported on the ground that the books of account for the relevant years were not available with the distributors and dealers who provided the confirmation. In the present case, it is seen that the petitioner had filed various documents which were already on record i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the burden of the sales tax had not been passed on to the distributors and that these ledger accounts, on their perusal, clearly depict that the credit notes were issued to the distributors inclusive of the sales tax. In the impugned order, rejecting the claim for refund, the Joint Commissioner has been critical of the credit notes and the manner in which they have been prepared and purely on this basis has come to the conclusion that the burden of sales tax was passed on by the petitioner to its dealers and distributors. It is further noticed in the impugned order that it has been repeatedly stated that on June 27, 2008 the petitioner was directed that the copies of the credit notes should be got verified by the stockists as a proof that the tax burden had not been passed on to them. However, a reading of the said order annexed at page 146 of the petition does not bear out the assertion that such a direction was ever given to the petitioner. All that can be discerned from the said order is that the Joint Commissioner recorded that the copies of the credit notes needed verification. Even otherwise, the fact that the Joint Commissioner himself got the verification done from som ..... X X X X Extracts X X X X X X X X Extracts X X X X
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