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2016 (4) TMI 227 - DELHI HIGH COURT

2016 (4) TMI 227 - DELHI HIGH COURT - [2016] 92 VST 83 (Del) - Refund claim for AY 2009-10 - Engaged in business of providing DTH broadcasting services - Default assessment, hence invokation of powers under Section 32 of DVAT Act - Held that:- the Court finds no justification for the refund due to the Assessee being withheld by the DT&T any longer. The repeated attempts at re-opening the assessments for each of the months of AY 2009-10, notwithstanding the Assessee's claim for refund being accep .....

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d by the Registry to the Petitioner forthwith through an authorized representative. - Decided in favour of petitioner - W. P. (C) 6510/2014 & CM APPL. 3898/2016 - Dated:- 4-4-2016 - S. Muralidhar And Vibhu Bakhru, JJ. For the Petitioner : Mr. A.R. Madhav Rao, Mr. Rajat Mittal, Advocates For the Respondent : Mr. Anuj Aggarwal, Additional Standing counsel W.P.(C) 12151/2015 & CM APPL. 32261/2015, W.P.(C) 12308/2015 & CM APPL. 32610/2015, W.P.(C) 12319/2015 &CM APPL. 32721/2015, W.P.(C) .....

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fter the Assessee ) is for a direction to the Department of Trade and Taxes (DT&T), Government of NCT of Delhi to disburse the amount claimed by the Assessee towards refund for the Assessment Year ( AY ) 2009-10, along with the applicable interest. 2. The challenge in the remaining writ petitions by the same Assessee is to notices of default assessment of tax and interest issued by the Value Added Tax Officer (VATO) on 18th November 2015 under Section 32 of the Delhi Value Added Tax Act, 200 .....

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e transferred on right to use basis to customers through distributors while the ownership thereof vests with the Assessee. 4. The Assessee had filed a refund claim for ₹ 20,67,03,510 in the value added tax return on 28th April 2010 under the provisions of DVAT Act. On 8th July 2010 the Assessee was asked by the VATO to produce documents, which the Assessee complied with by letter dated 17th July 2010. 5. On 4th November 2010 the Assessee revised its VAT return by marginally reducing the re .....

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nd the Assessing Authority ( AA ), i.e., the VATO was directed to consider the fresh claim filed by the Petitioner. 7. By order dated 12th September 2011, the VATO once again rejected the refund claim of the Assessee. Against this order, objections were filed by the Assessee on 20th October 2011 before the OHA. On 24th June 2013, the order dated 12th September 2011 was set aside by the OHA and again the matter was remanded to the VATO. 8. Meanwhile, a special audit was undertaken. The special au .....

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in equal proportions in the immediate successive financial years. Of the total claim of ₹ 20,59,55,250, a part thereof was disallowed. The credit of ₹ 18,75,61,739 was allowed in three equal yearly instalments. Accordingly, ₹ 6,25,20,580 was held eligible to be claimed for the AY 2009-10. The balance was permitted to be allowed as refund into equal instalments of the same amount during 2010-11 and 2011-12. 9. On 11th July 2012, a notice under Section 59 of the DVAT Act was issu .....

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, the Assessee revised its return for the AY 2009-10, claiming refund of ₹ 6,66,05,308 due to the Assessee for the said AY as required by the special audit report. The balance refund was claimed in two equal instalments in the subsequent AYs. On 9th January 2013, the VATO again issued a notice for personal hearing and the Assessee was called to furnish further documents. This was also complied with by the Assessee. 11. After the OHA had by its order dated 24th June 2013 allowed the Assesse .....

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default assessment notice dated 19th September 2013 as regards other issues, the Assessee filed objections before the OHA on 18th November 2013. These objections are stated to be pending. 12. A copy of the said objections filed on 18th November 2013 have been enclosed with the writ petition as Annexure A-27, and an averment to that effect has been made in para 20 of the writ petition. In the short affidavit filed by Special Commissioner, in response to the present petition, it is admitted that t .....

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VATO rejecting the refund claimed have been set aside by the OHA and those orders have become final. 14. In the above circumstances, it is urged b the Assessee that it is obligatory on the part of the Respondent to follow the mandate of Section 38 of the DVAT Act and issue the refund due to the Assessee. Reliance is placed in Swarn Darshan Impex (P) Ltd. v. Commissioner, Value Added Tax (201 0) 31 VST 475 (Del). It is clarified that the Assessee is not aggrieved by the assessment order dated 19 .....

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sment notice) for AY 2009-10. It was directed that on the deposit being made the amount will be placed in the fixed deposit which would be kept renewed. Pursuant to the above order, the Respondent had deposited a cheque in the sum of ₹ 4,97,35,047. The said amount has been kept in a fixed deposit with automatic renewal. 16. Mr. Sudhir Nandrajog, learned Senior counsel appearing for Respondent No. 2, drew the attention of the Court to Rule 36-B (7) of the Delhi Value Added Tax Rules, 2005 ( .....

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fairly stated that if indeed those objections are pending then in terms of Section 74B of the DVAT Act read with Rule 36-B (7) of the DVAT Rules, no notice of default assessment could have been issued. He however sought some more time to verify if the objections were indeed pending. 17. The Court is not inclined to grant further time to the Respondents for the above purpose. Rule 36B (7) of the DVAT Rules read with Section 74B of the DVAT Act makes the position explicit that if there is any obje .....

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