Delhi High Court
Sunrise Luxury Retail Pvt Ltd vs Commissioner Of Value Added Tax on 20 December, 2011
Author: Sanjiv Khanna
37
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision : December 20th, 2011
+ ST.APPL. 17/2011
SUNRISE LUXURY RETAIL PVT LTD ..... Petitioner
Through: Mr. S.C.Ladi, Sr. Adv. with
Mr. Rajesh Jain, Adv.
versus
COMMISSIONER OF VALUE ADDED TAX ..... Respondent
Through: Mr. H.C.Bhatia, Adv.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE R.V.EASWAR
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest?
SANJIV KHANNA,J: (ORAL)
The present appeal under Section 81 of the Delhi Value Added Tax Act,
2008 (Act, for short) impugns order dated 30th November, 2011 passed by the
Appellate Tribunal, Value Added Tax, Delhi. By the impugned order the Tribunal
has disposed of the application under Section 76(4) of the Act for waiver of pre-
deposit with the condition that the appellant herein should deposit 15% of the total
demand of tax, interest and penalty in each of the appeals as a pre-condition for
hearing of the appeals on merit.
ST.APPL. No.17/2011 Page 1
2. After hearing counsel for the parties, the following substantial question of
law is framed:-
"Whether the Tribunal was justified in directing pre-deposit of
15% of the tax, interest and penalty under Section 76(4) of the
Act as a pre-condition for hearing of the appeal."
3. With the consent of the counsels, the appeal is taken up for final disposal.
4. The appellant is running a retail outlet for men and women wear, leather
goods and accessories. It is registered under the Act and for the second quarter of
the assessment year 2008-09 the appellant had declared total turnover of
Rs.3,01,74,396/-. The said turnover comprised of taxable turnover @ 1%, 4% and
12.5% and also included exempted turnover. The total output tax liability on the
aforesaid turnover as per the appellant was Rs.21,77,506/-. The appellant had
carried forward tax credit from the previous period of Rs.31,31,446/-. After
adjusting the output tax liability of Rs.21,77,506/- from this tax credit, the
appellant claimed that it had a tax credit of Rs.9,50,631/-. This was not claimed as
a refund but was carried forward in terms of the Explanation attached to Section 11
(2) of the Act.
5. Subsequently, the appellant realized that there was a mistake and
inadvertently they had not included the entire/full input tax credit on the purchase
turnover made during this quarter. Accordingly, a revised return was filed to
enhance the tax credit carried forward from Rs.9,50,631/- to Rs.22,13,576/-.
6. The case was also taken up for audit under the Act. As per documents
placed on record an assessment was made and the net tax assessed is minus
Rs.9,50,631/-. It is clear from the tax summary that no addition was made, in spite
of audit under the Act. The original return filed by the appellant for the second
ST.APPL. No.17/2011 Page 2
quarter for the assessment year 2008-09 was treated as valid/correct return and the
revised return by the assessee was treated as null and void return. The Assessing
Officer vide order dated 27.10.2010 held that the appellant-assessee should have
filed objections and could not have revised the return. It may be noted that the
Assessing Officer did not rework or question and upset the figures of the original
return. These remained undisputed and were accepted. The Assessing Officer in
spite of the said facts had imposed tax, interest and penalty on the basis of figures
from the revised return. Learned counsel for the appellant submits that there is a
contradiction in the order, as the revised return has been rejected as void and
invalid.
7. The aforesaid order was confirmed by the Special Commissioner-I. She
made further adjustment.
8. It is in these circumstances that the appellant has filed an appeal before the
Tribunal and the impugned order has been passed on the application for waiver of
pre-deposit.
9. Thus, the factual position is that the total output liability on the taxable
turnover of Rs.21,77,506/- and tax credit of Rs.31,31,446/- have been accepted.
Thus, there is no demand on the basis of original return. The revised return has
been rejected as void. In these circumstances, we feel that the appellant should not
be asked to make a pre-deposit before the hearing of the appeals. Even after the
audit is carried out under the Act, the tax assessed was in minus figure and the
figures in the original return remain untouched. The question of law is accordingly
answered in favour of the appellant and against the revenue.
10. It is clarified that in case the appellant has taken benefit of the carried
forward tax in the next year on basis of revised return, appropriate order can be
passed by the Assessing Officer in accordance with law.
ST.APPL. No.17/2011 Page 3
11. Opinion expressed above is for disposal of the present appeal and will not be
binding on the Tribunal when the appeals are heard on merits.
The appeal is disposed of. No costs.
SANJIV KHANNA,J
R.V.EASWAR, J
DECEMBER 20, 2011
mm/vld
ST.APPL. No.17/2011 Page 4
