Delhi High Court - Orders
Itd-Itd Cem Jv vs Commissioner Of Delhi Goods And ... on 20 September, 2023
Author: Yashwant Varma
Bench: Yashwant Varma, Dharmesh Sharma
$~20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 8352/2022 & CM APPL. 25160/2022 - STAY
ITD-ITD CEM JV ..... Petitioner
Through: Mr. Rajesh Jain, Mr. Virag
Tiwari and MR. Ramashish,
Advs.
versus
COMMISSIONER OF DELHI GOODS AND SERVICES
TAX. .... Respondent
Through: Mr. Anuj Aggarwal, ASC,
GNCTD along with Ms. Ayushi
Bansal, Ms. Arshya Singh and
Mr. Yash Upadhyay, Advs.
CORAM:
HON'BLE MR. JUSTICE YASHWANT VARMA
HON'BLE MR. JUSTICE DHARMESH SHARMA
ORDER
% 20.09.2023
1. The writ petitioner assails the Hearing Notice dated 24 May 2022 issued by the Special Commissioner-I acting as the Objection Hearing Authority ["OHA"]. A further challenge is laid to the adjustments which have been made in the refund order which came to be issued on 29 April 2022. The dispute itself pertains to the Assessment Year 2010-2011 and in respect of which a demand of tax and interest of Rs. 8,80,89,920/- and penalty of Rs. 4,66,96,421/- as framed through Form DVAT-24 and Form DVAT-24A of the Delhi Value Added Tax Act, 2004 ["the Act"] came to be created against the petitioner on 29 March 2017.
2. Aggrieved by the aforesaid, the petitioner is stated to have filed objections under Section 74 of the Act before the OHA on 29 May 2017. Undisputedly, no orders have been passed by the OHA on those This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 22/09/2023 at 22:14:24 objections which remained pending on its board.
3. On 04 May 2022, the petitioner is stated to have submitted a notice referable to Section 74(8) of the Act seeking to bring to the attention of the OHA that the pending objections had not been disposed of. We further take note of the deeming provision which stands incorporated in Section 74(9) of the Act and which mandates that once such a notice has been tendered and the OHA fails to decide or dispose of the objections within a period of 15 days therefrom, the objections would be deemed to have been accepted.
4. If the period of 15 days were to be computed from 04 May 2022, undisputedly, the same would have come to an end on or about 19 May 2022. It is in the aforesaid context that the challenge was laid to the notice dated 24 May 2022. Notwithstanding the stand of the respondents that the notice dated 04 May 2022 had not been tendered in accordance with the statutory provisions and consequently the curtain of limitation as contemplated under sub-section (9) of Section 74 of the Act could not be said to have dropped down, we prima facie find that the adjustment would not sustain even otherwise.
5. Undisputedly, and in the light of the principles enunciated by the Court in Flipkart India Private Limited v. Value Added Tax Officer, Ward 300 & Ors. [2023 SCC OnLine Del 5201] as long as objections are pending before the OHA, there does not exist an amount "duly crystallized" or an "amount due" as contemplated under Section 38(2) of the Act and which may justify an adjustment being made against a refund claim. While dealing with the aforesaid aspect this Court in Flipkart India Private Limited has held as under:-
"41. The respondents also cannot possibly seek to justify the retention of the refund claim on account of the default assessment This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 22/09/2023 at 22:14:24 notices which were issued on 15 May 2014 and 07 June 2014. This since the petitioner had duly filed objections before the OHA and in terms of Section 35(2) of the DVAT Act, and the demand as raised in terms thereof could not have been enforced.
42. We note that Section 38(2) of the DVAT Act uses the expression "recovery of any other amount due under this Act".
The Commissioner in terms of Section 38(2) is thus entitled to apply any amount found to have been paid by an assessee in excess of the amount due from him before making a refund only if there exists an enforceable demand against that assessee. As is manifest on a conjoint reading of Section 35(2) and 38(2) of the DVAT Act, as long as objections remain pending with the OHA, any amount claimed by the respondents would clearly not answer the description of an amount due or payable as contemplated under Section 38(2). This is also evident from the exposition of the legal position in Bhupendra Auto International.
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46. There thus existed no justification for the respondents adjusting the sum of Rs. 10,74,67,218/- on 03 December 2018. This since evidently the objections were yet to be disposed of by the OHA on that date. We thus find ourselves unable to sustain the stand as taken by the respondents and observe that they clearly acted in flagrant violation of the mandate of Section 38 of the DVAT Act. The writ petitioner is thus entitled to the grant of the writs as prayed for."
6. Mr. Aggarwal, learned counsel representing the respondents, at this stage, sought time to address further submissions.
7. Consequently, list again on 26.09.2023.
YASHWANT VARMA, J.
DHARMESH SHARMA, J.
SEPTEMBER 20, 2023 Neha/sadiq This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 22/09/2023 at 22:14:25