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Dish Tv India Ltd. Through Its ... vs Commissioner Of Trade And Traxes, Delhi on 13 October, 2022

Author: Rajiv Shakdher

Bench: Rajiv Shakdher

                                              NEUTRAL CITATION NO : 2022/DHC/004483




                              $~64
                              *    IN THE HIGH COURT OF DELHI AT NEW DELHI

                              %                                              Date of decision: 13.10.2022
                              +      VAT APPEAL 34/2022

                                     DISH TV INDIA LTD. THROUGH ITS AUTHORIZED
                                     REPRESENTATIVE                           ..... Appellant
                                                    Through: Mr Vivek Sarin, Adv.

                                                         versus

                                     COMMISSIONER OF TRADE AND TAXES, DELHI
                                                                            ..... Respondent
                                                 Through: Mr Satyakam, ASC.

                              CORAM:
                              HON'BLE MR JUSTICE RAJIV SHAKDHER
                              HON'BLE MS JUSTICE TARA VITASTA GANJU
                                      [Physical Hearing/Hybrid Hearing (as per request)]

                              RAJIV SHAKDHER, J.: (ORAL)

1. Allowed, subject to just exceptions.

2. This is an application seeking condonation of delay in re-filing the appeal. The delay involved is 12 days.

2.1. Mr Satykam, who appears on behalf of the respondent, does not oppose the prayer made in the application.

3. The delay is accordingly condoned.

4. The application is disposed of in the aforesaid terms.

NEUTRAL CITATION NO : 2022/DHC/004483 VAT APPEAL 34/2022 & CM Nos. 44395/2022[Application filed on behalf of the appellant seeking interim relief]

5. This appeal is directed against order dated 02.06.2022 passed by the Delhi Value Added Tax Appellate Tribunal [in short, "Tribunal"]. 5.1 The operative directions are contained in paragraph 25 of the said order, which reads as follows:

"25. As a result, all these appeals are disposed of and the impugned assessments and the impugned orders as regards levy of tax, interest and penalty, based on the ground of suppression of sale and keeping in view the provision of Section 40A of DVAT Act are set-aside.

However, in the given facts and circumstances and to save any loss to the exchequer by way of tax advantage on account of non-refund of input tax credit, due to sale of the set of product at a price lower than the actual purchase price, Assessing Authority shall be at liberty to proceed in accordance with law within the stipulated period from the date of communication of present decision, no doubt, after providing reasonable opportunity of being heard, to the dealer. "

6. Mr Vivek Sarin, who appears on behalf of the appellant, says that although the appellant is not aggrieved by the directions contained in the aforementioned order whereby the impugned assessments and the orders concerning levy of tax, interest and penalty were set aside, what the appellant is aggrieved by is the direction issued in the very same paragraph which empowers the Assessing Authority to ascertain as to whether any loss has been incurred by the exchequer by way of tax advantage on account of non-refund input tax credit, due to sale of the product at prices lower than the actual price.

NEUTRAL CITATION NO : 2022/DHC/004483

7. Mr Sarin says that the remand, if made, had to adhere to the conditions set forth in Section 76(8) of the Delhi Value Added Tax Act, 2004 [hereinafter referred to as the "Act"]. For the sake of convenience, the said provision is extracted hereafter:

"76. Appeals to the Appellate Tribunal xxx xxx xxx (8) The Appellate Tribunal shall not set aside an assessment and remit the matter to the Commissioner for a further assessment, unless it has first -

(a) advised the aggrieved person of the proposed order;

(b) offered the person the opportunity to adduce such further evidence before it as might assist the Appellate Tribunal to reach a final determination."

8. Mr Sarin says that the appellant was not advised by the Tribunal that it intended to set aside the assessment and thereafter, remit the matter to the Assessing Authority for further assessment.

9. We have no material on record to conclude that the submission made in this behalf by Mr Sarin is correct. According to us, the appellant should have, in these circumstances, immediately moved the Tribunal by way of a review application.

10. It is conceded by Mr Sarin that the Tribunal has powers of review, as reflected in Section 76(13) of the Act.

10.1 Mr Sarin says that he wishes to withdraw the appeal and move the Tribunal by way of a review application, if liberty is granted in that behalf.

11. Mr Satyakam, who appears on behalf of the respondent, says that he cannot come in the way of the appellant moving the Tribunal by moving a VAT APPEAL 34/2022 Page 3 of 4 Signature Not Verified Digitally Signed By:KAUSHAL KUMAR SACHDEVA Signing Date:28.10.2022 18:13:51 NEUTRAL CITATION NO : 2022/DHC/004483 review application.

12. The appeal is, accordingly, dismissed as withdrawn with liberty as prayed for.

12.1. The pending application shall stand closed.

13. The Tribunal will entertain the review application and rule as to whether the necessary ingredients of remand, as provided under Section 76(8) of the Act were fulfilled in the case.

14. Needless to add, nothing stated hereinabove would be construed as an expression of opinion as to how the review application should be dealt with and disposed of by the Tribunal.

(RAJIV SHAKDHER) JUDGE (TARA VITASTA GANJU) JUDGE OCTOBER 13, 2022/r VAT APPEAL 34/2022 Page 4 of 4 Signature Not Verified Digitally Signed By:KAUSHAL KUMAR SACHDEVA Signing Date:28.10.2022 18:13:51