TMI Blog2019 (8) TMI 1016X X X X Extracts X X X X X X X X Extracts X X X X ..... d that because of issuance of notice under Section 59 of the said Act, albeit beyond the prescribed time, the refund was not payable, is not tenable. This Court has no hesitation in holding that the exercise undertaken by the Respondent which resulted in the re-assessment order dated 15th March, 2019, creating a demand afresh for the first quarter of 2017-18 is, unsustainable in law. The reassessment exercise appears to have been undertaken at a stage long after the refund amount was due. The refund due could not have been stopped by creating a fresh demand pursuant to such reassessment exercise - the impugned order dated 15th March, 2019 passed by the VATO, Ward 41, creating a fresh demand for the first quarter of 2017-18 against the Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sued a notice under Section 59 of the DVAT Act, calling for the records for the purposes of assessment. In terms of Section 38 (3) (a) (ii) of the DVAT Act, the refund claimed in the return had to be processed and issued within two months from the date of filing of the return i.e. 9th October, 2017. The Petitioner states that on 20th November, 2017, in terms of Rule 4 of the Central Sales Tax (Delhi) (Rules), 2005 ( CST, Delhi Rules ), the reconciliation return for the interstate stocks/sales in Form-9 was filed and that thereby, the Petitioner complied with the requirements of Section 38 (7) (d) of the DVAT Act. 6. Pursuant to the notice issued on 4th October 2017, the assessment in respect of the above period under the CST Act wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat date was that it proposed to undertake reassessment of the Petitioner s return for the aforementioned first quarter of 2017-18. His grievance was that despite notices to the Petitioner, it did not come forward to participate in the reassessment proceedings. 11. Mr. Rajesh Jain, learned counsel for the Petitioner, points out that the above exercise of undertaking reassessment when refunds were overdue was plainly illegal in view of the settled law, explained by this Court in several decisions including Swarn Darshan Impex Pvt. Ltd. v. Commissioner VAT 2010 (31) VST 475 (Del), Lotus Impex v. Commissioner DT T (2016) 89 VST 450 (Del) and Dish TV India Ltd. v. GNCTD (2016) 92 VST 83 (Del). In short, his submission was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod. Consequently, the subsequent purported issuance of notice under Section 59 cannot be taken as a ground for not paying the refund to the petitioner. In this connection, the provisions of sub-section (7) of Section 3 also needs to be examined. The said provision stipulates that for calculating the period prescribed 1n Section 38(3)(a), the time taken to, inter alia, furnish additional information sought under Section 59 shall be excluded. It is obvious that exclusion can only be when the period of limitation itself has not run out. The consequence of this discussion is that the notice under Section 59 in connection with refund has to be issued within the period of two months stipulated in Section 38(3)(a)(ii). As a result, the submissi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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