TMI Blog2023 (9) TMI 1006X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 74 of the DVAT Act and it would be open to the petitioner to raise all objections regarding untenability of the impugned default notices of tax interest including under Section 34 of the DVAT Act with regard to the limitation prescribed for assessment or re-assessment. The instant Writ Petition is partly allowed to the effect that the impugned adjustment order dated 18 November 2022 is hereby quashed and the respondent is consequently directed to refund the amount of Rs. 17,10,15, 285/- for the 4th quarter of 2015-16 and also Rs. 5,44,39,148/- for the 1st quarter of 2017-18 along-with interest as per Section 42 of the DVAT Act from the date it fell due till realisation. - HON'BLE MR. JUSTICE YASHWANT VARMA HON'BLE MR. JUSTICE DHARMESH SHARMA For the Petitioner Through: Mr. Rajesh Jain, Mr. Virag Tiwari and Mr. Ramashish, Advocates. For the Respondent Through: Mr. Rajeev Aggarwal, ASC with Ms. Shaguftha Hameed, Mr. Prateek Badhwar, Advs. JUDGMENT DHARMESH SHARMA, J. 1. This writ petition under Article 226 and 227 of the Constitution of India filed by the petitioner is directed against the respondent thereby assailing the impugned adjustment order dated 18 November 2022 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... background scenario to the effect that the default assessment for the 1st quarter of 2015-2016 was framed by the respondent on 03 September 2016, which was challenged before the Objection Hearing Authority [OHA] and eventually the objections for FY 2014-2015 as well as 1st quarter of 2015-16 were decided on 04 February 2019, whereby the demands were set aside and yet the refund was not released. In the meanwhile, vide letter dated 16 March 2018, the petitioner had made a request for release of the refund for 2015-16, pending objections suggesting that since the refund sought was Rs. 17,10,15,285/- as against the demand of Rs. 3,08,49,661/-, the balance amount of Rs. 14,01,65,624/- could be refunded along with interest. 5. On the respondent being unresponsive, the petitioner preferred a Writ Petition bearing No. W.P. (C) 2105/2018, before this Hon ble Court seeking the refund for 2014-15. The same was allowed on 22 May 2019, and consequently an order for refund of Rs. 32,11,62,907/-including interest was allowed, and thereafter, DVAT-22 was issued on 27 May 2019. However, being aggrieved of short payment of interest, the petitioner approached this Court again, resulting in this Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner claiming refund, the petitioner did not respond to several notices issued under Section 59 (2) of DVAT Act thereby calling upon it to submit certain documents for the relevant tax period, and therefore, the impugned notices of default assessment came to be issued and notified as also uploaded on the DVAT Portal; and for the petitioner failing to comply with the default notices within the statutory limitation period, refund of Rs. 17,10,15,285/- and Rs. 5,44,39,148/- have been adjusted against the pending demand vide impugned adjustment order dated 18 November 2022. Additionally, the maintainability of the writ petition is challenged for there being available an efficacious alternate statutory remedy provided under Section 74 of the DVAT Act. Heavy reliance was placed on the decisions in Assistant Commissioner of State Tax v. Commercial Steel Ltd. [MANU/SC/0801/2021]; Prodair Air Products India Private Limited v. Deputy Commissioner of State Tax [2022 SCC OnLine Ker 423 : (2022) 97 GSTR 140],, besides MSC Enterprises v. Government of NCT of Delhi Ors. [WP(C) No.7243/2020 (D.0.D. : 30.09.2020)] and Anjney Loys Pvt. Ltd. vs. Commissioner of State Goods Services Tax Anr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isfied that the dealer has refunded the amount to the 1 price charged for the goods expressly includes an amount of tax payable under this Act, the amount may be refunded to the seller or may be applied by the seller under clause (b) of sub-section (3) of this section and the Commissioner may reassess the buyer to deny the amount of the corresponding tax credit claimed by such buyer, whether or not the seller refunds the amount to the buyer. [(10)] Where a registered dealer sells goods and the price charged for the goods is expressed not to include an amount of tax payable under this Act the amount may be refunded to the seller or may be applied by the seller under clause (b) of sub-section (3) of this section without the seller being required to refund an amount to the purchaser. [(11) Notwithstanding anything contained to the contrary in sub-section (3) of this section, no refund shall be allowed to a dealer who has not filed any return due under this Act.] 10. Abridging long academic dissertation, this Court in a recent decision in Flipkart India Private Limited v. Value Added Tax Officer, Ward 300 Ors. W.P. (C) 6430/2022 decided on 21.08.2023, had an occasion to refer and exami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 59 of the DVAT Act was not followed. Therefore, the petitioner is entitled to the refund claimed. 12. All said and done, in so far as issuance of the impugned default notices of tax interest is concerned, in light of the case of the respondent that revised return dated 31 March 2017 was filed for the 4th quarter 2015-16 and notices under Section 59(2) DVAT Act dated 19 February 2016, 27 May 2016 and 25 May 2018 were not complied with by the petitioner, the only recourse in law is to file a statutory appeal under Section 74 of the DVAT Act and it would be open to the petitioner to raise all objections regarding untenability of the impugned default notices of tax interest including under Section 34 of the DVAT Act with regard to the limitation prescribed for assessment or re-assessment. 13. In view of the foregoing discussion, the instant Writ Petition is partly allowed to the effect that the impugned adjustment order dated 18 November 2022 is hereby quashed and the respondent is consequently directed to refund the amount of Rs. 17,10,15, 285/- for the 4th quarter of 2015-16 and also Rs. 5,44,39,148/- for the 1st quarter of 2017-18 along-with interest as per Section 42 of the DVA ..... X X X X Extracts X X X X X X X X Extracts X X X X
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