TMI Blog2015 (10) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... he self assessment and default assessment) and Section 33 of the DVAT Act which deals with the penalty assessment - on the basis of the survey, a notice was issued to the Assessee under Section 59 of the DVAT Act as regards the assessment to tax. The Assessee did not participate in the assessment proceedings and an ex parte ‘Notice of Default Assessment of Tax and Interest’ was issued on 24th February 2013 by the VATO under Section 32 of the DVAT Act read with Rule 36 (1) of the DVAT Rules in Form 24. On the same day the VATO passed the penalty order, without any service of prior notice on the Assessee. The VATO sent to the assessee the penalty order as a “Notice of Assessment of Penalty” under Rule 36 (2) of the DVAT Rules in Form 24A. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TO) imposing penalty on the Appellant Assessee under Section 86(10) of the DVAT Act without issuing notice to the Assessee? 3. The Objection Hearing Authority (OHA) by an order dated 21st January 2014 dismissed the appeal of the Assessee against the order dated 26th April 2013 of the VATO on the ground that the Assessee had already paid the penalty. The AT has by the impugned order confirmed the penalty. 4. The brief facts, as articulated by Mr. A.K. Babbar, learned counsel for the Appellant, are that the Assessee s premises were surveyed on 16th November 2012. Variation in cash and stock was found. The VATO enhanced the gross profit and levied tax, interest and penalty. Admittedly, prior to levying penalty under Section 86 (1) no sep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding the reason in writing, shall make and serve on the person a notice of assessment of the penalty that is due under this Act. (2) The amount of any penalty assessed under this section is due and payable on the date on which the notice of assessment is served by the Commissioner. (3) Any assessment made under this section shall be without prejudice to prosecution for any offence under this Act. Explanation.- A person may, if he disagrees with the notice of assessment, file an objection under Section 74 of this Act . 8. In addition Rule 36 (2) of the Delhi Value Added Tax Rules, 2005 (DVAT Rules) states Where the Commissioner makes an assessment of penalty under Section 33, he shall record the order in Form DVAT-24 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been given an opportunity of hearing prior to levy of penalty. Consequently, we set aside the penalty order and remit the matter to the Value Added Tax Officer to pass appropriate orders in accordance with law after giving an opportunity of hearing to the petitioner. 11. Likewise in Indian Railway Catering and Tourism Corporation Ltd. Govt. of NCT of Delhi 48 DSTC J-316 (decision dated 19th July 2010 in WP(C) Nos. 10527/2009) this Court ordered: We feel that the petitioner ought to have been given an opportunity, of hearing before the penalty orders could have been passed. 12. In the present case it is seen that on the basis of the survey, a notice was issued to the Assessee under Section 59 of the DVAT Act as regards the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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