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2020 (1) TMI 847

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.... and 'E1' Forms for the FY 2012-13 that respondent No. 5 may give to the petitioner No.1, and make assessments accordingly and thereby grant refund.  The petitioner also seeks a restraint against respondent Nos. 3 and 4 from taking coercive steps against the petitioner, including levy of penalty, levy of interest, payment of differential tax, etc. 3. The case of the petitioners is that petitioner No.1 was awarded two contracts which involved On-Shore supply of equipments/ material on Ex-Works basis for the GIS Sub-stations.  These two contracts - one dated 28.11.2011, related to Peera Garhi, and the other similar contract dated 15.06.2010 related to Lodhi Road.  The conditions of the two contracts are similar.  These conditions of contract, inter alia, provided as follows: "14.5 In case of local supplies and services, all Customs Duties and Levies, Octroi, Excise Duties, Sales Tax payable on equipments, components, sub-assemblies, raw materials and any other items used for their consumption or dispatched directly to the Employer from their Sub-supplier(i.e. sale-in-transit at concessional rate) shall be included in the Bid price and any such taxes, duties, le....

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....e supplies made for the Lodhi Road Sub-Station Project.  The petitioner informed the respondent No.5 that it was facing an additional liability to the tune of Rs. 1,02,15,605/- due to non- issuance of 'C' Forms.  Respondent No.5 was put to notice that the entire liability in that regard would fall on its shoulders.  The petitioner issued another communication on the said date i.e. 05.07.2016 in respect of the Peera Garhi Sub-Station Project as well.  It was pointed out that in respect of the said contract, it was facing an additional liability of Rs. 1,17,31,788/-/- due to non-issuance of 'C' Forms by respondent No.5.  The petitioner followed up on the failure of respondent No.5 to issue 'C' Forms for amounts aggregating to Rs. 12,39,30,099/- in respect of the aforesaid two contracts with respondent No. 5 but to no avail. 6. It appears that respondent No.5 addressed a communication dated 23.02.2018 to the VAT Officer on the subject of Issuance of old 'C' Forms for the F.Y. 2009-10, 2010-11, 2011-12, 2012-13, 2013-14, 2014-15 & 2015-16.  The respondent No. 5, in this communication, stated as follows: "Please find enclosed herewith the details of pend....

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....if any dealer or person discovers a discrepancy in a return furnished by him under Section 26 of the DVAT Act, then such dealer or person shall remove such discrepancy by way of filing the revised return within the period of one year, following the year of such tax period.  The respondents submit that once the period of one year to revise the return expires under Section 28 of the DVAT Act, the dealer - in such circumstances, cannot be allowed to rectify any discrepancy by filing a revised returns, as there is an express provision prescribing limitation by statutory mandate, and there is no other enabling provision permitting any authority to relax the said limitation.  Section 28 of the DVAT Act reads as follows: "28 Correction of deficiencies If a person discovers a discrepancy in a return furnished by him for a tax period under this Act, he shall remove such discrepancy and furnish a revised return within the year following the year of such tax period: PROVIDED that if, as a result of the discrepancy, the person has paid less tax than was due under this Act, he shall, pay the tax owed and interest thereon: PROVIDED FURTHER that for the years 2008-09, 2009-10 an....

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....ending before the Supreme Court were pending. 13. Same is the position in the decision of this Court in Allied Automation Engineering Services Pvt. Ltd. v. Commissioner of Trade and Taxes, W.P. (C.) No. 9474/2018 decided on 10.09.2018, in M/s. Samsung C&T Pvt. Ltd. v. The Commissioner, Trade & Taxes, & Anr., W.P. (C.) No. 4092/2017 decided on 15.02.2019 and in E.I. Dupont India Private Limited v. Commissioner, VAT, Delhi & Anr, C.M. No. 47356/2018 in W.P. (C.) No. 4952/2017 decided on 27.02.2019. 14. The submission of Mr. Gulati, learned senior counsel for the petitioner is that the position in the present case is slightly different, inasmuch, as, respondent No. 5 is also an undertaking of the GNCTD.  He submits that due to the failure on the part of the respondent No.5 - which is a Government undertaking, in reflecting the sales made by petitioner No. 1 in their returns and in not seeking the 'C' Forms from respondent No. 1 to 3, the petitioner cannot be made to suffer.  He points out that the respondents have already recovered tax to the tune of Rs. 87 lakhs in excess, and the petitioner is facing the prospect of being penalised and prosecuted for no fault of its own.....