TMI Blog2016 (6) TMI 188X X X X Extracts X X X X X X X X Extracts X X X X ..... ts. In the circumstances, the production of records at this stage by the Petitioner No. 1 will only delay the refund further. Considering the number of times the Petitioners have had to approach this Court, the request of counsel for the Respondents for yet another opportunity to consider afresh the issue of refund due to Petitioner No. 1 is not justified. The whole object of stipulating a time schedule under Section 38 of the DVAT Act for processing refunds will be defeated if any further indulgence is shown to the Respondents. Therefore, the Respondents are directed to issue in favour of Petitioner No. 1 the refund order in the sum of ₹ 34,62,662 together with 6% interest per annum from 20th February, 2015 till the date of its payment, which shall not be not later than 31st May, 2016. - Decided in favour of petitioner - W. P. (C) 610/2016, W.P.(C) 1117/2016 & CM No.4884/2016 - - - Dated:- 23-5-2016 - S. Muralidhar And Vibhu Bakhru, JJ. For the Petitioners : Mr A. Maitri, Ms Radhika Chandrashekhar and Mr Naresh Goel, Advocates For the Respondents : Mr Gautam Narayan, Additional Standing counsel and Mr R. A. Iyer, Advocate along with Mr Ram Avtar Meena and Mr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that they could not be considered as orders in the proper format in terms of Section 38 of the DVAT Act. The Court directed that the refund application of Petitioner No. 1 should be disposed of in terms of Section 38 of the DVAT Act within six weeks. 6. Pursuant to the above direction, on 29th June 2015, the Assistant Commissioner, Ward-16 passed the impugned order, in which, after setting out the brought forward and carry forward figures from April 2006 to March 2007, it was observed as under: The above mentioned Chart based on the information of the dealer filed in DVAT-16 clearly reflects that there is no continuity in brought forward and carry forward or refunds. As such the claim of the dealer of refund is not correct and cannot be considered at this stage and the same is hereby rejected. 7. Initially, against the above order the Petitioners filed Contempt Case (C) No.754/2015 which was disposed of 28th September, 2015 after recording that the Petitioners wished to file a writ petition challenging the order. Thereafter, the present writ petition was filed. 8. On 22nd January 2016, this Court directed that not later than two weeks from today, a decision will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts further time to file an affidavit and directed that the complete records of the case be kept ready for perusal of the Court. 10. Today, the Court is informed by Mr Gautam Narayan and Mr. Satyakam, Additional Standing counsel for the Respondents that the records of the case are not traceable. It is stated that during the time when the registration of Petitioner No. 1 stood cancelled, a decision was taken by the Department to weed out records earlier to 2010 and in that process the entire record of Petitioner No. 1 was destroyed. The counsel for the respondents made an earnest plea that Petitioner No. 1 should therefore be asked to produce the records that are available with it before the Assistant Commissioner to enable him to verify the record and process the refund application within a period of two weeks from today. 11. If there was no background to the present case, and the long history which has been adverted to, the Court may have been persuaded to consider the aforesaid request of the Respondents. When the Court inquired what records should be asked to be produced, the counsel for the Respondents referred to the notice dated 22nd January 2016 issued under Section 59 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere passed not on the basis of any record. On this ground itself the said demands are rendered arbitrary and unsustainable in law. To be fair to learned counsel for the Respondents, they made no attempt to defend the said patently illegal default assessments of tax, interest and penalty. 13. Considering that there has been an abject failure by the Respondents to comply with the statutory mandate of Section 38 of the DVAT Act, the Court sees no purpose being served in the Petitioners at this stage producing records of over ten years from 1st April 2005 till 21st January 2016. Since the Respondents in any event do not have the records, it will not be possible for them to verify the correctness of the records to be produced by the Petitioners. Also, the stage for the Department to now question the correctness of the self assessment return filed by the Petitioner No.1 way back on 30th October, 2007 for the year 2006-07 has long been crossed. There is no possibility of the said assessment being reopened. The carry forward of the refund amount in the succeeding returns up to 2012 was also never questioned by the Respondents. In the circumstances, the production of records at this stag ..... X X X X Extracts X X X X X X X X Extracts X X X X
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