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Otis Elevator Company (India) Limited vs Commissioner Of Value Added Tax & Ors on 31 August, 2022

Author: Rajiv Shakdher

Bench: Rajiv Shakdher

                           $~4
                           *   IN THE HIGH COURT OF DELHI AT NEW DELHI
                           +       W.P.(C) 2892/2022
                                   OTIS ELEVATOR COMPANY (INDIA) LIMITED...... Petitioner
                                                Through: Mr Udit Jain with Mr Kumar
                                                         Visalaksh, Advs.

                                                       versus

                                   COMMISSIONER OF VALUE ADDED TAX
                                   & ORS.                                ..... Respondents
                                               Through: Mr Gautam Narayan, ASC with Ms
                                                        Asmita Singh and Ms Pragya
                                                        Barsaiyan, Advs.

                                   CORAM:
                                   HON'BLE MR JUSTICE RAJIV SHAKDHER
                                   HON'BLE MS JUSTICE TARA VITASTA GANJU
                                                       ORDER

% 31.08.2022 [Physical Hearing/Hybrid Hearing (as per request)]

1. Counsel for the petitioner says that he wishes to assail the order dated 13.05.2022 which was passed by Special Commissioner. 1.1. Via this order the refund of Rs.1,32,25,457/- was sanctioned after adjusting Rs.67,74,543/- towards pending demands.

2. To be noted, in the instant case, we are concerned with Financial Year [in short "F.Y."] 2012-13.

2.1. A perusal of the order dated 13.05.2022 would show that the adjustment towards pending demands is made vis-à-vis tax periods other than F.Y. 2012-13.

3. It is the petitioner's case that Rs.2,00,00,000/- was deposited in the form of security for having its premises de-sealed. In this context, reliance is placed on Section 60(4) of the Delhi Value Added Tax Act, 2004 [in short, "DVAT Act"].

4. On the other hand, the respondents/revenue have referred to Section 38(2) of the DVAT Act to contend that adjustments towards pending tax demands could be made before releasing refund amount.

5. The issue that arises for consideration is: whether the amount deposited as security by the petitioner can be adjusted against pending tax demands?

6. Mr Gautam Narayan, learned ASC, who appears on behalf of the respondents/revenue, emphasized, with all vigour at his command, that the amount deposited by the petitioner was made over towards value added tax. 6.1. In this context, Mr Narayan relies upon the following assertions made by the applicant/petitioner in his application, which forms part of the order dated 13.05.2022:

"The payment is, without prejudice to the rights available to us and does not amount of admission of any tax liability. We, further, request you to treat the same as additional VAT for the current year and adjust the same towards the tax liability."

7. Having regard to the above, leave is granted to the petitioner to amend the writ petition to assail the order dated 13.05.2022.

8. As and when such an application is filed, an appropriate order will be passed after giving the respondents/revenue the opportunity to file a reply.

9. List the matter on 16.02.2023.

10. We may also note that, although, on the previous date i.e., 12.07.2022, we had directed the Registry to scan and upload the refund order dated 13.05.2022, we find that the order, in its entirety, has not been uploaded.

11. The Registry will take corrective steps in that behalf.

RAJIV SHAKDHER, J TARA VITASTA GANJU, J AUGUST 31, 2022/pmc Click here to check corrigendum, if any W.P.(C) 2892/2022 3/3 Signature Not Verified Digitally Signed By:ATUL JAIN Signing Date:08.09.2022 10:59:22