Delhi High Court
Aar Tee Tranport Co. Pvt. Ltd vs Commissioner, Department Of ... on 31 January, 2013
Author: Badar Durrez Ahmed
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 31.01.2013
+ W.P.(C) 7259/2012
AAR TEE TRANPORT CO. PVT. LTD .... Petitioner
versus
COMMISSIONER, DEPARTMENT OF TRADE AND TAXES AND
ORS. ..... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr Rajesh Mahna with Mr.Ruchir Bhatia
For the Respondents : Mr Vineet Bhatia
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE R.V.EASWAR
JUDGMENT
BADAR DURREZ AHMED, J (ORAL)
CM 18700/2012
Exemption is allowed subject to all just exceptions.
The application is disposed of.
CM 689/2013
This is an application for amendment of the writ petition as
mentioned in the previous order. The learned counsel for the respondent
has no objection to the amendments being carried out. Consequently, this
application is allowed. The amended writ petition, which is annexed
along with this application, is taken on record.
This application is disposed of.
WP(C) 7259/2012
1. With the consent of the learned counsel for the parties, this writ
petition is taken up for hearing at the admission stage itself.
2. In this writ petition, the petitioner has prayed for quashing of an
order dated 13.7.2006 passed by the Value Added Tax Officer as also the
order dated 19.11.2012 passed by the Objection Hearing Authority. It is
also prayed that a direction be given to the effect that the objections filed
by the petitioner against the order dated 13.7.2006 be deemed to have
been allowed in view of the provisions of Section 74(8) and 74(9) of the
Delhi Value Added Tax Act, 2004. A prayer for refund of an amount of
Rs.4 lakhs which has been deposited by the petitioner, alongwith interest
accrued thereon, has also been made.
3. This case has a chequered history inasmuch as this is the third
round before this Court. In the first round, this Court disposed of the
petitioner's writ petition (W.P.(C) No.10434/2006) on 5.10.2010 by
observing that the question which arose for consideration was whether the
goods were actually sold in Delhi or only transported through Delhi to
reach another destination. It was the case of the petitioner that it is not a
dealer and is only transporter and the goods were never sold in Delhi, but
were meant for transportation to other states. This Court on 5.10.2010
observed that the said inquiry could not be carried out in a petition under
Article 226 of the Constitution of India and consequently it directed the
Value Added Tax Officer to conduct such an inquiry on production of
documents before him after affording an opportunity of hearing to the
petitioner. The amount of Rs.4 lakhs which had been deposited with the
Registrar General of this Court was directed to be transferred to the Value
Added Tax Authority. It was also directed that the competent authority
should complete the aforesaid exercise within two weeks from the date of
receipt of the order passed on that day.
4. The Value Added Tax Officer passed the order on 8.11.2011 which
was challenged by the petitioner in another writ petition being W.P.(C)
No.8929/2011. That writ petition was also disposed of by an order dated
23.12.2011 with the following directions:-
"10. Having heard learned counsel for the parties, we feel that
the petitioner should be entitled to exclude the period during
which the Writ Petition Nos. 10418/2006 and 10434/2006 had
remained pending before this Court and the period taken up in
the enquiry proceedings till order dated 8th November, 2011
was passed, under Section 14 of the Limitation Act, 1963. If the
aforesaid period is excluded, then the petitioner can file
objections within the period of limitation specified in Section
74(4) of the Act.
11. In these circumstances and keeping in view the earlier order
passed by the High Court dated 5th October, 2010 read with
order dated 29th November, 2010, we grant liberty to the
petitioner to file objections on or before 6th January, 2012. In
case objections are filed within the aforesaid period, the same
will not be dismissed on the ground that they are barred by
limitation, as we have excluded the period during which the
aforesaid writ petitions had remained pending and the period
during which the inquiry was conducted. It is clarified that till
the objections are disposed of, no further recovery will be
made. It is also clarified that the Division Bench while passing
the order dated 5th October, 2010 had not commented upon or
expressed any view on merits of the claim or payment, tax or
penalty imposed by the VATO. The objections once filed will
be decided in accordance with law and as per the Act."
5. Pursuant to the aforesaid directions, the petitioner filed his objections on
30.12.2011. On 24.8.2012, the petitioner sent a notice/letter to the Objection
Hearing Authority to dispose of the objections. The said notice purported to be
one under Section 74(8) of the said Act. The said notice reads as under:-
"Date: 24/08/2012
Commissioner of Trade & Taxes
Bikrikar Bhawan, IP Estate
New Delhi
Reg.: Aar Tee Transport Company (P) Ltd, 5810/8,
Block No.4, 3rd Floor, Dev Nagar, Karol Bagh,
New Delhi-110005.
Sub.: Disposal of objection filed by the appellants u/s
74 (8) of DVAT Act.
Sir,
The above named appellant had filed objection on
30/12/2011 and the same were listed before Sh.Ajay Kumar
Gupta, Addl. Commissioner for hearing.
The proceedings were taken up by Mr.Ajay Kumar Gupta
on various dates when the case was fixed for hearing on
17/08/2012 the appellant along with the counsel reached the
department and they were informed that the charge of Sh.A.K.
Gupta is being transferred to the office of Sh.A.K. Kaushal
Addl. Commissioner 6th Floor. On further enquiry from his
office the appellant has come to know that the files have not
reached the office of Sh.A.K. Kaushal, Addl. Commissioner.
Today on 24th Aug 2012 all the list containing the particular of
files transferred have been checked but the name of such file is
not appearing.
As per provision of sec 74(7) the objection hearing
Authority is required to dispose the objection within a period of
8 months. Whereas the time limit of eight months would expire
on 30th Aug 2012. The particular of file are not traceable with
the result the appellant is suffering harassment as there is
nobody who can look into the matter and decide the objections.
Kindly issue necessary directions for the hearing of the
matter in order to decide the objection after hearing of the same.
Thanking you,
Yours faithfully,
For Rajesh Mahna & Co. Advocates."
6. On 10.09.2012, the petitioner received a notice dated 31.08.2012 from
the Additional Commissioner/Objection Hearing Authority indicating that the
objections were be heard on 20.09.2012. It may be pointed out that this notice,
though dated 31.08.2012, was actually dispatched on 08.09.2012, as is evident
from the tracking result of India Post, a copy whereof is placed at page 79 of
the paper book. In response to this notice dated 31.08.2012, the petitioner sent
a further objection dated 19.09.2012 wherein he has specifically indicated that
since the earlier objections had not been disposed of within 15 days of the
notice dated 24.08.2012, in view of the provisions of Section 74(9) of the said
Act, the objections have to be deemed to have been accepted and therefore,
there was no question of further hearing in the matter.
7. Thereafter, the petitioner filed the present writ petition which came up
for hearing on 21.11.2012. On that date, notice was issued to the respondents
and was accepted by the learned counsel for the respondents. This Court
directed that on the next date of hearing, the learned counsel for the
respondents would produce the relevant file containing the objections which
are the subject matter of the present proceedings. The matter was re-notified
on 31.01.2013 (today).
8. In the meanwhile, the petitioner received an order dated 19.11.2012
which shows that the order was apparently signed on 16.11.2012. The said
order disposed of the initial objections filed by the petitioner on 30.12.2011.
There is no reference to the petitioner's notice dated 24.08.2012 or the further
objection dated 19.09.2012. In fact, the Objection Hearing Authority has not at
all considered the point raised by the petitioner that since the objections had not
been disposed of within 15 days of the issuance of the notice dated 24.08.2012,
the objections would be deemed to have been accepted under Section 74(9) of
the said Act. The learned counsel for the petitioner also pointed out that he had
referred to the decision of this Court in CST v. Behl Construction: 21 VST 261
in the objection dated 19.09.2012 which has also not been noticed by the
Objection Hearing Authority in the impugned order dated 19.11.2012.
9. We have heard the learned counsel for the petitioner as also the learned
counsel for the respondent at length and we find that the impugned order dated
19.11.2012 does not at all deal with the issue raised by the petitioner with
regard to the applicability of Section 74(8) and 74(9) of the said Act in the
backdrop of the notice issued by the petitioner on 24.08.2012. For this reason
alone, we feel that the impugned order is liable to be set aside. It is ordered
accordingly.
10. The matter is remitted to the Objection Hearing Authority for
consideration of the issues raised by the petitioner particularly with regard to
the notice dated 24.08.2012 and the subsequent objection dated 19.09.2012. It
would also be open to the Objection Hearing Authority to examine the entire
matter on merits. The necessary documents have already been filed by the
petitioner and are on the record of the Objection Hearing Authority. We direct
that the Objection Hearing Authority shall dispose of the matter within three
weeks from today after giving an opportunity of hearing to the petitioner. For
this purpose, the petitioner and/or its representatives shall appear before the
Objection Hearing Authority on 05.02.2013 at 11.00 a.m. No further notice for
appearance would be necessary.
11. The writ petition is disposed of with the above directions.
BADAR DURREZ AHMED, J
R.V.EASWAR, J
JANUARY 31, 2013
gm
