Delhi High Court
Bajrang Fabrics Pvt. Ltd. vs Commissioner Of Vat & Anr. on 2 June, 2016
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
15 to 28
+ W.P.(C) 11221/2015 & CM No. 29209/2015 (for stay)
BAJRANG FABRICS PVT. LTD. ..... Petitioner
Through: Mr. Vasdev Lalwani and Mr. Rohit
Gautam, Advocates.
versus
COMMISSIONER OF VAT & ANR. ..... Respondents
Through: Mr Gautam Narayan, ASC with Mr.
R.A. Iyer, Advocate.
WITH
+ W.P.(C) 11222/2015 & CM No. 29210/2015 (for stay)
BAJRANG FABRICS PVT. LTD. ..... Petitioner
Through: Mr. Vasdev Lalwani and Mr. Rohit
Gautam, Advocates.
versus
COMMISSIONER OF VAT & ANR. ..... Respondents
Through: Mr Gautam Narayan, ASC with Mr.
R.A. Iyer, Advocate.
WITH
+ W.P.(C) 11279/2015 & CM No. 29493/2015 (for stay)
BAJRANG FABRICS PVT. LTD. ..... Petitioner
Through: Mr. Vasdev Lalwani and Mr. Rohit
Gautam, Advocates.
versus
W.P. (C) 11221/2015 & connected matters Page 1 of 20
COMMISSIONER OF VAT & ANR. ..... Respondents
Through: Mr Gautam Narayan, ASC with Mr.
R.A. Iyer, Advocate.
WITH
+ W.P.(C) 11280/2015 & CM No. 29498/2015 (for stay)
BAJRANG FABRICS PVT. LTD. ..... Petitioner
Through: Mr. Vasdev Lalwani and Mr. Rohit
Gautam, Advocates.
versus
COMMISSIONER OF VAT & ANR. ..... Respondents
Through: Mr Gautam Narayan, ASC with Mr.
R.A. Iyer, Advocate.
WITH
+ W.P.(C) 11383/2015 & CM No. 29954/2015 (for stay)
BAJRANG FABRICS PVT. LTD. ..... Petitioner
Through: Mr. Vasdev Lalwani and Mr. Rohit
Gautam, Advocates.
versus
COMMISSIONER OF VAT & ANR. ..... Respondents
Through: Mr Gautam Narayan, ASC with Mr.
R.A. Iyer, Advocate.
WITH
+ W.P.(C) 11384/2015 & CM No. 29955/2015 (for stay)
BAJRANG FABRICS PVT. LTD. ..... Petitioner
Through: Mr. Vasdev Lalwani and Mr. Rohit
Gautam, Advocates.
versus
W.P. (C) 11221/2015 & connected matters Page 2 of 20
COMMISSIONER OF VAT & ANR. ..... Respondents
Through: Mr Gautam Narayan, ASC with Mr.
R.A. Iyer, Advocate.
WITH
+ W.P.(C) 11556/2015 & CM No. 30602/2015 (for stay)
BAJRANG FABRICS PVT. LTD. ..... Petitioner
Through: Mr. Vasdev Lalwani and Mr. Rohit
Gautam, Advocates.
versus
COMMISSIONER OF VAT & ANR. ..... Respondents
Through: Mr Gautam Narayan, ASC with Mr.
R.A. Iyer, Advocate.
WITH
+ W.P.(C) 11557/2015 & CM No. 30603/2015 (for stay)
BAJRANG FABRICS PVT. LTD. ..... Petitioner
Through: Mr. Vasdev Lalwani and Mr. Rohit
Gautam, Advocates.
versus
COMMISSIONER OF VAT & ANR. ..... Respondents
Through: Mr Gautam Narayan, ASC with Mr.
R.A. Iyer, Advocate.
WITH
+ W.P.(C) 11558/2015 & CM No. 30605/2015 (for stay)
BAJRANG FABRICS PVT. LTD. ..... Petitioner
Through: Mr. Vasdev Lalwani and Mr. Rohit
Gautam, Advocates.
W.P. (C) 11221/2015 & connected matters Page 3 of 20
versus
COMMISSIONER OF VAT & ANR. ..... Respondents
Through: Mr Gautam Narayan, ASC with Mr.
R.A. Iyer, Advocate.
WITH
+ W.P.(C) 11559/2015 & CM No. 30606/2015 (for stay)
BAJRANG FABRICS PVT. LTD. ..... Petitioner
Through: Mr. Vasdev Lalwani and Mr. Rohit
Gautam, Advocates.
versus
COMMISSIONER OF VAT & ANR. ..... Respondents
Through: Mr Gautam Narayan, ASC with Mr.
R.A. Iyer, Advocate.
WITH
+ W.P.(C) 11561/2015 & CM No. 30608/2015 (for stay)
BAJRANG FABRICS PVT. LTD. ..... Petitioner
Through: Mr. Vasdev Lalwani and Mr. Rohit
Gautam, Advocates.
versus
COMMISSIONER OF VAT & ANR. ..... Respondents
Through: Mr Gautam Narayan, ASC with Mr.
R.A. Iyer, Advocate.
WITH
+ W.P.(C) 11562/2015 & CM No. 30609/2015 (for stay)
W.P. (C) 11221/2015 & connected matters Page 4 of 20
BAJRANG FABRICS PVT. LTD. ..... Petitioner
Through: Mr. Vasdev Lalwani and Mr. Rohit
Gautam, Advocates.
versus
COMMISSIONER OF VAT & ANR. ..... Respondents
Through: Mr Gautam Narayan, ASC with Mr.
R.A. Iyer, Advocate.
WITH
+ W.P.(C) 11639/2015 & CM No. 30914/2015 (for stay)
BAJRANG FABRICS PVT. LTD. ..... Petitioner
Through: Mr. Vasdev Lalwani and Mr. Rohit
Gautam, Advocates.
versus
COMMISSIONER OF VAT & ANR. ..... Respondents
Through: Mr Gautam Narayan, ASC with Mr.
R.A. Iyer, Advocate.
AND
+ W.P.(C) 11640/2015 & CM No. 30915/2015 (for stay)
BAJRANG FABRICS PVT. LTD. ..... Petitioner
Through: Mr. Vasdev Lalwani and Mr. Rohit
Gautam, Advocates.
versus
COMMISSIONER OF VAT & ANR. ..... Respondents
Through: Mr Gautam Narayan, ASC with Mr.
R.A. Iyer, Advocate.
W.P. (C) 11221/2015 & connected matters Page 5 of 20
CORAM:
JUSTICE S. MURALIDHAR
JUSTICE VIBHU BAKHRU
ORDER
% 02.06.2016
Dr. S. Muralidhar, J.:
1. These are fourteen petitions filed by a dealer registered under the Delhi
Value Added Tax Act 2004 („DVAT Act‟) challenging the default notices of
assessment of tax and interest dated 7th September 2015 under Section 32 of
the DVAT Act passed by the Value Added Tax Officer („VATO‟) for
various quarters of the year 2013-14 and 2014-15 and default notices of
assessment of penalty of the same date under Section 33 of the DVAT Act.
The Petitioner also challenges the corresponding notices dated 11th August
2015 issued to the Petitioner under Section 59 (2) of the DVAT Act as being
contrary to both the DVAT Act and the Central Sales Tax Act, 1956 („CST
Act‟).
2. The Petitioner is functioning in the jurisdiction of the Assistant
Commissioner VAT/Assessing Authority Ward No. 70 and is holding a TIN
number. It is engaged in the business of trading in all kinds of fabric
including imported fabrics. The Petitioner is also undertaking inter-state
sales. It is, therefore, also registered under the CST Act since November
2011. The Petitioner states that it has been regularly filing its returns under
both the CST Act and the DVAT Act.
3. The Petitioner states that during the years 2013-14 and 2014-15 it had
been regularly filing returns declaring its turnover both under the DVAT Act
and the CST Act. Where there were interstate sales, the Petitioner obtained
the requisite „C‟ Forms from the purchasing dealers to claim the
concessional rate of CST in terms of Section 8 (4) of the CST Act.
Notices under Section 59 (2) DVAT Act
4. Notices were received by the Petitioner on 11th August 2015 under
Section 59 (2) of the DVAT Act from the VATO Ward 70, directing it to
furnish various information/documents in respect of interstate sales made to
M/s. Rajesh Traders, a registered dealer of Rajasthan for the period 1st April
2013 to 31st March 2015. The notices were uploaded on the website of the
Department of Trade & Taxes („DT&T‟) in the account of the Petitioner.
According to the Petitioner, the said notices were not delivered to it in terms
of Rule 62 of the Delhi Value Added Tax Rules 2005 („DVAT Rules‟).
5. The Petitioner claims that it was not aware that the said notices had been
uploaded on the website. Referring to Sections 12 and 13 of the Information
Technology Act, 2002 („IT Act‟) it is contended that as long as the notices in
electronic form were not viewed and downloaded by the Petitioner they
could not be said to have been served on the Petitioner.
Ex parte notices of default assessments of tax and penalty
6. The Petitioner says that since it was not aware of the above notices, it did
not appear before the VATO Ward 70 on the date mentioned in the notice.
Consequently, the impugned ex parte notices of default assessments of tax,
interest and penalty under Sections 32 and 33 of the DVAT Act came to be
issued on 7th September 2015 raising demands for the periods mentioned
therein. Hereunder, in a tabular form, are the details of the period, the dates
of the notices issued, the dates of the notices of default assessments and the
amounts which are impugned in these petitions:
Writ No Tax Period Date of Order u/s 32 Order u/s33
S.(59)(2)
Date Amount Date Amount
Notice
W.P.(C) 4th quarter 11th August 7th 2,29,292
11221/2015 of 2014 2015 September
W.P.(C) 1st quarter 11th August 7th 14,43,938
11222/2015 of 2014 2015 September
W.P.(C) 4th quarter 11th August 7th September 2,44,275
11279/2015 of 2014 2015 2015
W.P.(C) 1st quarter 11th August 7th September 17,00,880
11280/2015 of 2014 2015 2015
W.P.(C) 3rd quarter 11th August 7th 7,32,972
11383/2015 of 2013 2015 September
W.P.(C) 1st quarter 11th August 7th 7,35,678
11384/2015 of 2013 2015 September
W.P.(C) 4th quarter 11th August 7th September 16,58,932
11556/2015 of 2013 2015 2015
W.P.(C) 1st quarter 11th August 7th September 9,76,940
11557/2015 of 2013 2015 2015
W.P.(C) 2nd quarter 11th August 7th September 7,63,457
11558/2015 of 2014 2015 2015
W.P(C) 2nd quarter 11th August 7th 6,69,619
11559/2015 of 2014 2015 September
W.P.(C) 2nd quarter 11th August 7th September 15,15,087
11561/2015 of 2013 2015 2015
W.P.(C) 4th quarter 11th August 7th 13,64,991
11562/2015 of 2013 2015 September
W.P.(C) 3rd quarter 11th August 7th September 9,17,922
11639/2015 of 2013 2015 2015
W.P.(C) 2nd quarter 11th August 7th 11,74,361
11640/2015 of 2013 2015 September
7. The reasons given in each of the notices is identical except for change in
the periods and the figures. The reasons in one such notice dated 7th
September 2015 of default assessment of tax and interest for 1st, 2nd and 4th
quarters of 2014-15 reads as under:
"A notice under Section 59 (2) of DVAT Act 2004 was issued to the
dealer on 11th August 2015 directing the dealer to file documents
before 14.08.2015 in r/o interstate sales made to M/s. Rajesh Traders
(TIN 08854055364) dealer of Rajasthan whose which has been found
to be a suspicious/bogus dealer. Since the dealer has made ISS of
fabrics to the tune of Rs. Rs.4,81,31,272/- in First Qtr. 2014-15,
Rs.2,23,20,667/- in Second Qtr. 2014-15 & Rs.76,43,063/- in the Fourth
Qtr. 2014-15 Taxable @5% additional tax and penalty under Section
86 (10) of DVAT Act, 2004 is imposed against the dealer along with
interest up to date."
Petitioner's contentions on merits
8. It is contended by the Petitioner that if indeed it had undertaken inter-state
sales as alleged in the above notices of default assessment, then clearly such
transactions could not be taxed under Section 32 of the DVAT Act and no
penalty under Section 33 of the DVAT could have been levied. Inter-state
sales would be taxable only under the CST Act. Secondly, it is pointed out
with reference to the notes in the relevant file of the DT&T that the above ex
parte notices of default assessments of tax, interest and penalty under
Sections 32 and 33 of the DVAT Act which were issued on 7th September
2015 were not framed by the concerned VATO of Ward 70 but by a Record
Keeper and therefore, were without jurisdiction.
9. Notice was directed to be issued by this Court in each of the petitions on
2nd December 2015. The Respondents were restrained from adopting any
coercive measures for recovery of the demands.
Stand of the DT&T
10. In reply to the petitions it is stated by the DT&T that the Petitioner has
an equally efficacious alternative remedy to challenge the impugned order
under Section 74 of the DVAT Act before the Objection Hearing Authority
(„OHA‟).
11. On merits it is submitted by the DT&T that uploading of the notices on
the website constituted deemed service on the Petitioner. Reference is made
to an order issued by the Commissioner, Trade and Taxes on 17th January
2014 under Rule 62 (1) (vi) of the DVAT Rules which inter alia states that
with effect from 1st February 2014, notices, summons or orders by Value
Added Tax (VAT) Authorities shall be issued to dealers by electronic means
by pasting the same on the webpage of the individual dealers and that such
manner of service shall be deemed to be service of the
document/notice/order for the purposes of Rule 62 of the DVAT Rules.
12. It is further denied by the DT&T that the impugned assessment orders
were framed by the Record Keeper and not by the concerned VATO. It is
denied that VATO has not disputed that the transactions between the
Petitioner and M/s. Rajesh Traders were interstate sales and that the
impugned order was passed without application of mind.
13. The Court has heard the submissions of Mr. Vasdev Lalwani, learned
counsel for the Petitioners, as well as Mr. Gautam Narayan, learned
Additional Standing counsel for the Respondents.
Alternative remedy
14. The first issue concerns the efficacious alternative remedy available to
the Petitioner before the OHA by Section 74 of the DVAT Act. The Court
finds, for reasons to be discussed hereafter, that there are obvious glaring
errors in each of the impugned orders which appear to system generated and
issued without application of mind. In the circumstances relegating the
Petitioner to the alternative remedy of going before the OHA would cause
further delays in resolving the disputes that have arisen and would not be
efficacious. Therefore, the above preliminary objection is rejected.
Service of notice
15. The second issue concerns the service of the notices under Section 59 (2)
DVAT Act on the Petitioner. Section 100 A of the DVAT Act 2004 speaks
of automation i.e. the preparation and issue of notice and orders in electronic
form. It reads as under:
"100A Automation
(1) The Government may, by notification in the Official
Gazette, provide that the provisions contained in the
Information Technology Act, 2000 (21 of 2000) as amended
from time to time, and the rules made and directions given
under that Act, including the provisions relating to digital
signatures, electronic governance, attribution,
acknowledgement and dispatch of electronic records, secure
electronic records and secure digital signatures and digital
signature certificates as are specified in the said notification
shall, insofar as they may, as far as feasible, apply to the
procedures under this Act.
(2) Where a notice or communication is prepared on any
automated data processing system and is properly served on any
dealer or person, then the said notice or communication shall
not be required to be personally signed by the Commissioner or
any other officer subordinate to him, and the said notice or
communication shall not be deemed to be invalid only on the
ground that it is not personally signed by the Commissioner."
16. Under Rule 62 of the DVAT Rules the manner of service of notices,
documents and orders has been set out. Under Rule 62 (1) (vi) the
Commissioner can prescribe any manner of service of notice other than
those mentioned in Rule 62 (1) (i) to (v). The order dated 17th January 2014
issued by the Commissioner in exercise of the power under Rule 62 (1) (vi)
of the DVAT Rules states that with effect from 1st February 2014 all notices
or summons or orders under the DVAT Act or DVAT Rules or the CST Act
shall be served upon the dealer(s) in the following manner:
(a) All VAT Authorities shall issue the notices/summons/ orders
to the dealers by electronic means by passing the same on
webpage of individual letters. In addition to this, an SMS alert
on the registered mobile numbers of the respective dealer may
also be sent, wherever a mobile number has been furnished to
the Department. The documents shall also be emailed to the
dealers, if the email id has been intimated by dealer to the
department.
(b) The documents so generated will be available on the
department‟s website www.dvat.gov.in and will be accessible
to dealers in their respective login ID. Such documents shall be
deemed to have been issued and served for the purposes of
Delhi Value Added Tax Act, 2004, Delhi Value Added Tax
Rules, 2006 and the Central Sales Tax Act, 1956."
17. In addition in para 2 of the said Order, it has been provided that as soon
as the document was issued by the VAT Authority, it would be available
„instantly‟ to the dealer for view that the dealer under the link
„Notices/Summons/Orders‟. It states that as soon as the dealer logs on to its
web page, a pop-up message will appear and after reading the „document‟,
the dealer shall click on „ok‟ button available at the end of the notice, as a
proof of reading the document. Afterwards, the dealer may access other
links. It is then stated "the manner of service, shall be deemed to be a service
of document for the purpose of Rule 62 of the Delhi Value Added Tax
Rules, 2005 at par with other manners prescribed under the said Rule".
Further the dealers are advised to visit their webpage regularly in order to
have immediate access of notice/summon/order issued.
18. Mr. Lalwani however contends that this is contrary to Section 12 and 13
of the IT Act which read as under:
"12. Acknowledgement of receipt - (1) -where the originator has not
agreed with the addressee that the acknowledgment of receipt may be
given by
(a) Any communication by the addressee, automated or otherwise.; or
b) Any conduct of the addressee, sufficient to indicate to the
originator that the electronic record has been received.
(2) Where the originator has stipulated that the electronic record shall
be binding only on receipt of an acknowledgement of such electronic
record by him, then unless acknowledgement has been so received,
the electronic record shall be deemed to have been never sent by the
originator.
(3) Where the originator has not stipulated that the electronic record
shall be binding only on receipt of such acknowledgement, and the
acknowledgement has not been received by the originator within the
time specified or agreed or, if no time has been specified or agreed to
within a reasonable time, then, the originator may give notice to the
addressee stating that no acknowledgement has been received by him
and specifying a reasonable time by which the acknowledgment must
be received by him and if no acknowledgment is received within the
aforesaid time limit he may after giving notice to the addressee, treat
the electronic record as though it has never been sent.
13. Time and place of despatch and receipt of electronic record -
(1) - Save as otherwise agreed between the originator and the
addressee, the dispatch of an electronic record occurs when it enters a
computer resource outside the control of the originator.
(2) Save as otherwise agreed between the originator and the
addressee, the time of receipt of electronic record shall be determined
as follows -
namely,
(a) if the addressee has designated a computer resource for the
purpose of receiving electronic record, -
(i) receipt occurs at the time when the electronic, record enters the
designated computer resource, or
(ii) if the electronic record is sent to a computer recourse of the
addressee i.e. not the designated computer resource, receipt occurs at
the time when the electronic record is retrieved by the addressee,
(b) If the address has not designated computer resource along with
specified timing, if any, receipt occurs when the electronic record
enters the computer resource of the addressee.
(3) Save as otherwise agreed to between the originator and the
addressee; an electronic record is deemed to be dispatch at the place
where the originator has his place of business, and is deemed to be
received at the place where the addressee has his place of business.
(4) the provisions of Sub-section (2) shall apply notwithstanding that
the place where the computer resource is located may be different
from the place where the electronic record is deemed to have been
received under sub -section(3).
(5) For the purposes of this section, -
(a) if the originator or the addressee has more than one place of
business, the principal place of business, shall be the place of
business;
(b) if the originator or the addressee does not have a place of business,
his usual place of residence shall be deemed to be the place of
business;
(c) „usual place of residence‟, in relation to a body corporate, means
the place where it is registered.
19. The originator of the notice in the present case is the Commissioner,
VAT. Unless it has been agreed to the contrary between the originator and
the noticee, the service of an electronic record will occur only when it enters
a computer resource outside the control of the originator. Section 100A of
the DVAT Act, inserted with effect from 16th November 2005, enables the
Commissioner to issue summons/notices/orders in electronic form. Section
100A of the DVAT Act appears to be in conformity and consistence with
Sections 12 and 13 of the IT Act. The originator of the notices is a statutory
authority, having the powers in terms of the DVAT Act read with the DVAT
Rules to prescribe the manner of service of electronic orders, summons,
notices etc. The Commissioner, as the originator of the notices under Section
59 (2) of the DVAT Act, has in terms of the order issued by him on 17th
January 2014 deemed that pasting of the notices on the web page of the
dealer would be deemed service of notice on the dealer.
20. The Court is unable to find a legal infirmity in the Order dated 17th
January 2014. It is not inconsistent with Section 13 (1) read with Section 13
(2) of the IT Act. While there may not be an express agreement between the
originator and the notice, an order validly passed by the Commissioner in
exercise of his powers under Rule 62 (1) (vi) of the DVAT Rules is binding
on the registered dealers. Therefore, the system put in place by the
Commissioner by the order dated 17th January 2014 cannot be said to be
inconsistent with Sections 12 and 13 of the IT Act. It appears that the dealers
registered under the DVAT Act are in fact adapting their functioning to the
changed system of service of electronic notices, summons or orders by
DT&T.
21. The Petitioner being a registered dealer under the DVAT Act ought to
have been aware of the above Order dated 17th January 2014 issued by the
Commissioner. The Petitioner was required to go to its account on the
DT&T website to view the notices posted on the said website. If the
Petitioner had given the mobile phone details to the DT&T, it would have
received SMS alerts as well. The failure by the Petitioner to go to the
website to view the impugned notices, notwithstanding the order dated 17th
January 2014 of the Commissioner, disables it from contending that there is
no proper service on it of the said notices under Section 59 (2) of the DVAT
Act.
Notices not issued by the Record Keeper
22. The next contention that has been raised concerns the events leading to
the passing of the impugned default notices of assessment of tax, and
interest as well as penalty. The Petitioner had access to the notings on the
file with the DT&T and on that basis it is sought to be contented that the
order has been issued not by the VATO concerned but by the Record
Keeper. The above contention is vehemently denied by the DT&T.
23. The Court has perused the said notings on the file. While there is a
noting signed by the Record Keeper that reads: "default assessment orders
and penalty framed under Section 32 and 33", there is nothing beyond that to
suggest that it was the Record Keeper who framed such orders. It is
plausible that the Record Keeper was merely noting the fact of the notices
having been framed. From this it is not possible to infer that the impugned
notices of default assessments of tax, interest and penalty were issued by the
Record Keeper and not by the VATO.
Default assessments unsustainable in law
24. The central issue in these petitions concerns the validity of the impugned
notices of default assessments of tax, interest and penalty all dated 7th
September 2015. A perusal of the notices of the assessment of tax and
interest dated 7th September 2015 reveals that they have all been issued
under Section 32 of the DVAT Act. Each of them is identically worded
except for the periods and the figures. Each notice records the fact that a
notice under Section 59 (2) was issued to the dealer on 11th August 2015
asking him to file documents before 14th August 2015 in respect of the inter-
state sales made to M/s. Rajesh Traders, a dealer in Rajasthan which was
found to be a 'suspicious/bogus dealer'. The next paragraph simply directs
the dealer to pay a sum as tax and furnish proof of such payment on or
before 6th October 2015.
25. Each of the impugned notices of default assessment of tax and interest
reveal inter alia the tax period for which the demand has been raised. While
Column 2 titled „turnover reported by dealer‟ contains a figure (presumably
as shown in the return filed by the dealer), Columns 3 and 4 titled „turnover
assessed‟ and „tax paid‟ are shown as '0'. The remaining Columns 5, 6, 7 and
8 titled „tax assessed‟, 'additional tax due, 'interest' and 'total amount due
contain figures. If the turnover assessed is zero, it is not possible that the tax
assessed is at a figure for e.g., of Rs. 14,43,938 for the first quarter of 2014.
This sort of obvious error can only be explained by some defect in the
system through which the said notices have been generated. No attempt has
been made by the DT&T to explain the error.
26. The second obvious error is that the impugned notices of default
assessment claim that the Petitioner made inter-state sales to the dealer in
Rajasthan who was found to be a 'suspicious/bogus' dealer. The notices
proceeds to state that "since the dealer has made ISS of fabrics to the tune
of.......", he is being asked to pay additional tax and penalty under Section
86 (10) of the DVAT Act. If indeed the sale was an inter-state one, then only
the CST Act would apply and not the DVAT Act.
27. Faced with this difficulty, Mr. Gautam Narayan, learned Additional
Standing counsel for the DT&T, sought to suggest that what the VATO
meant to convey was that since the dealer in Rajasthan was found to be a
'suspicious/bogus' dealer the sale made by the Petitioner were not inter-state
sales but local sales. However, the impugned notices state the contrary. The
question of bringing such inter-state sales within the ambit of the DVAT Act
does not arise. There has been an obvious non-application of mind by the
VATO. He (or the computer) has mechanically framed identical notices of
default assessments without bothering to examine what has been written
therein.
28. The above ground is by itself sufficient to invalidate the impugned
default notices of assessment of tax, interest and penalty dated 7th September
2015.
Conclusion
29. For the aforementioned reasons, the Court sets aside each of the notices
dated 7th September 2015 of default assessment of tax, interest and penalty
issued by the VATO under Sections 32 and 33 of the DVAT Act, which
have been impugned in these petitions.
30. Mr Narayan maintains that what the DT&T is seeking from the
Petitioner is the information and documents mentioned in the notices dated
11th August 2015 issued under Section 59 (2) of the DVAT Act. Therefore,
there is no need to issue fresh notices. The Court accordingly directs that the
Petitioner through its Authorized Representative to appear before the VATO
Ward 70 on 20th July 2016 at 11 am in response to the above notices dated
11th August 2015 and provide the information and documents that are
available with it. After examining the said information and documents, and
after affording the Petitioner an effective opportunity of being heard, as well
as the returns already filed for the periods mentioned in the notices, and after
complying with the principles of natural justice, the VATO concerned will
pass appropriate orders in accordance with law.
31. The petitions and applications are disposed of in the above terms with no
orders as to costs.
S. MURALIDHAR, J
VIBHU BAKHRU, J
JUNE 02, 2016
Rm/pkv
