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2015 (10) TMI 110 - DELHI HIGH COURT

2015 (10) TMI 110 - DELHI HIGH COURT - [2015] 85 VST 417 (Del) - Challange to assessment of tax and levy of penalty - Bar of limitation - Whether the limitation for reassessment under section 34 of the act is to be counted in relation to the period in which the return/revised return is filed or whether the same is counted in relation to the period to which the return/revised return relates to - Held that:- Rule 36 mandates that where the Commissioner makes a default assessment of tax under Secti .....

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nanced that merely because the orders based on which the online orders were issued on 01.04.2015 were factually recorded in the order sheet dated 31.03.2015, there was sufficient compliance with Rule 36 and Section 34. Rule 36 also mandates that the order is to be served on the dealer in the manner prescribed under Rule 62. The daily order sheet recorded on 31.03.2015 is not a notice of default assessment, which could have been served on the dealer in the manner prescribed under Rule 62. - Since .....

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, Addl. Standing Counsel JUDGMENT Sanjeev Sachdeva, J 1. By the present petition, the petitioner has impugned the notice of default assessment of tax and interest dated 01.04.2015 and the notice of assessment of penalty dated 01.04.2015 on the ground that the same are barred by limitation having been issued beyond the extended period of limitation of 6 years provided under Section 34 of the Delhi Value Added Tax Act, 2004 (hereinafter referred to as the Act). 2. The relevant year under considera .....

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as completed under Section 32 of the Act read with Section 9 of the Central Sales Tax Act, 1956. 4. The petitioner is stated to have been informed that there was an outstanding demand for the year 2008 -09 on account of missing forms. The petitioner deposited the demand on 07.05.2013. It is contended that the petitioner never received any notice or intimation for the payment of any arrears of tax for the year 2008-09. 5. On 11.03.2015 towards the fag end of the expiry of the sixth year from the .....

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assessment of penalty dated 01.04.2015 have been issued. 6. It is contended that the impugned notices have been issued beyond the statutory period of 6 years from the relevant year 2008 - 09, which period ended on 31.03.2015. 7. The respondents have filed the counter affidavit contending that the petitioner had failed to submit complete documents and information and had failed to produce relevant forms and documents and as such, the Assessing Officer recorded the orders of default assessment. It .....

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nder Section 28, as late as on 02.04.2012 and as such the notices for default assessment dated 01.04.2015 were well within the limitation having been issued within three years of the filing of the revised return. 8. Thus the question that falls for consideration is, whether the limitation for reassessment under section 34 of the act is to be counted in relation to the period in which the return/revised return is filed or whether the same is counted in relation to the period to which the return/r .....

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hever is the earlier: PROVIDED that where the Commissioner has reason to believe that tax was not paid by reason of concealment, omission or failure to disclose fully material particulars on the part of the person, the said period shall stand extended to six years. 10. Section 34 (1) (a) was substituted by the Delhi VAT (Amendment), Act 2013 dated 28.03.2013 with effect from 01.04.2013. Prior to substitution the section 34 (1) read as under: (1) No assessment or re-assessment under section 32 of .....

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on, the said period shall stand extended to six years. 11. Section 34 (1) (a) prior to its substitution by the Delhi VAT (Amendment), Act 2013 stipulated a period of 4 years from the date on which the person furnished a return under Section 26 or sub-section 1 of Section 28 of the Act. The period of limitation prescribed by the said provision prior to its substitution in 2013 related to the date of furnishing of return. The said provision has been substituted and the period of limitation is now .....

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ipulated by the proviso under Section 34 (1) relatable to the tax period would end on 31.03.2015. Though it is disputed by the petitioner that the proviso is not applicable in the present case, however admittedly, in the present case, the impugned notices have been issued on 01.04.2015, which is beyond even the extended period of 6 years as stipulated by the proviso. This is also subject to that fact that the Commissioner has extended the said period by application of proviso. 13. The impugned n .....

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:- 36. Assessments and enforcement of Tax and Penalties. (1) Where the Commissioner makes a default assessment of tax under section 32, he shall record the order in Form DVAT-24 and such notice of assessment shall be served on the dealer in the manner prescribed in Rule 62. (2) Where the Commissioner makes an assessment of penalty under section 33, he shall record the order in Form DVAT-24A and such notice of assessment of penalty shall be served on the dealer in the manner prescribed in Rule 62 .....

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very certificate, the Commissioner shall calculate the interest payable under sub-section (2) of section 42 for the period from the date of default till the date of issue of recovery certificate and the amount shall be indicated separately in the recovery certificate. 15. Rule 36 mandates that where the Commissioner makes a default assessment of tax under Section 32 or an assessment of penalty under Section 33 of the Act, he shall record the order in Form DVAT-24 and DVAT-24A respectively and su .....

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