TMI Blog2017 (8) TMI 627X X X X Extracts X X X X X X X X Extracts X X X X ..... position of tax and penalty thereupon are concerned, and hence the issue of jurisdiction ought to have been decided by the Respondent before proceeding further. The stand of the Respondent that it could not have waited for a decision on jurisdiction first before passing the assessment orders, as the time period fixed as per the order dated 15th March 2017, also appears to be clearly an attempt to cover up its own delay, inasmuch as, after the said order which prescribed two months for the entire exercise to be completed, the Respondent waited till 9th May, 2017 to issue even the first notice under Section 59 of the Act. Ward No.69 being the correct Ward from where the Petitioner carries on its business, and this fact already being well within the knowledge of the authorities since 22nd January, 2016, the AVATO Ward-72 clearly lacked the jurisdiction to pass the impugned orders. Petition allowed - decided in favor of petitioner. - W.P. (C) 5021/2017 & CM No.21657/2017 (stay) - - - Dated:- 10-8-2017 - S. MURALIDHAR PRATHIBA M. SINGH JJ. Petitioner Through: Mr. Rajesh Jain and Mr. Virag Tiwari, Advocates. Respondent Through: Mr. Anuj Aggarwal, ASC and Ms. Debos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he opinion that the present case is not the one where exercise of discretion under Article 226 of the Constitution of India is warranted given that the petitioner has not exhausted its appellate remedies. At the same time, peculiar circumstances are such that the filing of an appeal would expose the petitioner to an immediate liability of fulfilling the pre-deposit condition. Consequently, in the event, the petitioner prefers appeal/objections to the Special Commissioner under Section 74 of the DVAT Act, within three weeks from today, the same shall be deemed to have been in compliance with the limitation period and shall be heard and dealt with on the merits. However, OHA shall not decide the objections before ruling by the concerned VATO who shall first pass an order on the first and second quarters of 2015-16 within two months from today. It is reiterated that the petitioner shall not be required to fulfil any pre-deposit condition which shall be treated as vague. Likewise, the respondents are directed not to use coercive methods to recover the amounts outstanding on account of the impugned order. The writ petition is disposed of in the above terms. 6. As per the above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmits that the VAT department is well aware of the premises of the Petitioner which is 210, 2nd Floor, Part-II, Gujrawala Town, Delhi-110009, inasmuch as the search and survey by the department in January, 2016 and subsequent de-sealing, was conducted at the same premises. Mr. Jain relies upon the notification and circular issued under the DVAT Act and Rules to submit that though Mukherjee Nagar and Gujrawala Town fall in Zone-7, the jurisdictional office for Gujrawala Town is Ward-69 and not Ward-72. Mr. Jain further submits that the Petitioner has a reasonable explanation in respect of its transactions with Magna Marketing Sales and M/s. Oasis International to the effect that the purchases made from these entities and credit availed thereon was reversed in the 4th quarter of 2015-16 and there was no default by the Petitioner on that count. 11. According to Mr. Jain, since no notice was issued by the competent jurisdictional VATO of Ward-69, the Petitioner did not have an opportunity to explain its stand on merits. The issuance of notices by the AVATO Ward72 being without jurisdiction, the subsequent action of the said AVATO Ward-72 of issuing notices of tax, interest and penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, unless the context otherwise requires, - (h) Commissioner means the Commissioner of Value Added Tax appointed under sub-section (1) of section 66 of this Act. Section 32 - (1) If any person (a) has not furnished returns required under this Act by the prescribed date; or (b) has furnished incomplete or incorrect returns; or (c) has furnished a return which does not comply with the requirements of this Act; or (d) for any other reason the Commissioner is not satisfied with the return furnished by a person; the Commissioner may for reasons to be recorded in writing assess or reassess to the best of his judgment the amount of net tax due for a tax period or more than one tax period by a single order so long as all such tax periods are comprised in one year. (1A) If, upon the information which has come into his possession, the Commissioner is satisfied that any person who has been liable to pay tax under this Act in respect of any period or periods, has failed to get himself registered, the Commissioner may for reasons to be recorded in writing, assess to the best of his judgment the amount of net tax due for such tax period or tax periods an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the course of the hearing today, Mr. Sanjay Ghose, learned counsel appearing for the Respondent, on instructions, states that the Respondent concedes to this Court setting aside the impugned orders dated 12th January 2015 subject to the Petitioner appearing before the jurisdictional VATO i.e. the VATO of Ward 62 with the accounts and records and agreeing to provide information as may be sought by the jurisdictional VATO...... 15. In the present case, the submission of the Respondent that this Court had, in its order dated 15th March, 2017, agreed with its stand as contained in the counter affidavit, is bereft of merit, inasmuch as, in the said order, there is no discussion as to whether the AVATO Ward-72 has jurisdiction or not. The Court merely directed that the OHA shall decide the objections of the Petitioner after the concerned VATO has passed the order in respect of the 1st and 2nd quarters of 2015-16 within a period of two months from 15th March, 2017. The presumption by the Respondent that this direction should be deemed to be considered as acceptance by this Court that the AVATO Ward-72 had jurisdiction, is not borne out from the order. In any event, the question o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
