Delhi High Court
Commissioner Of Sales Tax vs M/S Jitender Mittal Engineers And ... on 23 January, 2009
Author: Badar Durrez Ahmed
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 23.01.2009
+ STA 17/2008
COMMISSIONER OF SALES TAX ... Appellant
- versus -
M/S JITENDER MITTAL ENGINEERS
AND CONTRACTORS ... Respondent
Advocates who appeared in this case:
For the Appellant : Ms Avnish Ahlawat with Ms Latika Chaudhary
For the Respondent : Mr S. K. Sarwal
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE RAJIV SHAKDHER
1. Whether Reporters of local papers may be allowed to
see the judgment ?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be reported in Digest ?
BADAR DURREZ AHMED, J
1. In this appeal on behalf of the revenue, the order dated
28.07.2008 passed by the Appellate Tribunal, Value Added Tax
(hereinafter referred to as 'the Tribunal') in appeal No. 63-
64/ATVAT/07-08 is under challenge. The respondent was issued a
notice for default assessment of tax and interest under Section 32 of the
Delhi Value Added Tax Act, 2004 (hereinafter referred to as 'the said
Act') and a demand of Rs 5,19,945/- including an element of interest of
Rs 67,819/- was created for furnishing a return which was incomplete
and incorrect. The Value Added Tax Officer also issued notice of
imposition of penalty and ultimately imposed a penalty under Sections
86 (12) and 86 (10) of the said Act.
2. Aggrieved by the order passed by the Value Added Tax Officer,
the respondent filed objections before the Joint Commissioner- III, who
heard the objections and rejected the contentions of the respondent/
dealer and upheld the orders passed by the Value Added Tax Officer.
Thereafter, the respondent filed appeals before the Tribunal. Although
the matter was taken up for hearing by the Tribunal on the application
of stay under Section 76 (4) of the said Act, since, at the outset, the
learned counsel for the respondent herein had raised the objection that
the order passed by the Joint Commissioner- III was beyond time
inasmuch as the respondent/ dealer's objections ought to have been
disposed of within a period of eight months, this issue was taken up. It
was contended that the date of filing of objections was 10.10.2006 and
that the objections were ultimately decided by an order dated
22.06.2007 by the Joint Commissioner- III. This was 12 days after the
expiration of the period of eight months from the filing of the
objections. It was contended that the matter was covered by the
Tribunal's decisions in the case of Behl Construction in appeal No.
402/ATVAT/06-07 dated 24.04.2008 and in Aravali Aluminium Pvt.
Ltd in appeal Nos. 275-280/ATVAT/07-08 dated 22.05.2008.
3. The Tribunal, after having heard the counsel for the parties,
accepted the contention of the learned counsel for the respondent/
dealer and allowed the appeals, following its decisions in Behl
Construction and Aravali Aluminium Pvt. Ltd.
4. The appeals arising from the said decisions of the Tribunal in
Behl Construction and Aravali Aluminium Pvt. Ltd were also subject
matters of appeals before this Court in STA 12/2008 and STA 13/2008
(respectively). In those appeals, the following substantial questions of
law were framed:-
1. Where on the expiry of time specified in section 74(7)
of the Delhi Value Added Tax Act, 2004 the
Commissioner has not exercised either of the options
set out in section 74(7)(a) or 74(7)(b), whether the
objection pending before the commissioner shall be
deemed to be allowed?
2. Whether the Tribunal was correct in law in providing a
mandatory period of eight months, within which the
Commissioner has to dispose of the objection pending
before him under section 74(7) of DVAT Act,
particularly, when no such stipulation is provided by
the statute?
By a detailed judgment delivered today itself, we have answered both
the questions of law in favour of the revenue and against the
respondents/ dealers. The orders passed by the Tribunal in Behl
Construction and Aravali Aluminium Pvt. Ltd have been set aside.
5. In these circumstances, for the same reasons, we set aside the
impugned order and allow the appeal. The questions, as framed in
STA 12/2008 and STA 13/2008, are also answered in the present
appeal in favour of the appellant/ revenue and against the respondent/
dealer.
The parties are left to bear their own costs.
BADAR DURREZ AHMED, J
RAJIV SHAKDHER, J
January 23, 2009
SR
