Delhi High Court
Taxation Bar Association (Regd.) vs Chief Secretary, Government Of ... on 16 September, 2016
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 16.09.2016
+ W.P.(C) 5263/2016
TAXATION BAR ASSOCIATION (REGD.) ..... Petitioner
Through: Mr.Vasdev Lalwani along with
Ms.Neera Gupta, Mr.Vinod Gautam
and Mr.Mukul Gautam, Advs.
Versus
CHIEF SECRETARY, GOVERNMENT OF NCT DELHI & ANR
..... Respondents
Through: Mr.Satyakam, ASC for GNCTD
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE JAYANT NATH
MS. G. ROHINI, CHIEF JUSTICE (ORAL)
1. "Taxation Bar Association", a registered association of Tax Legal
Practitioners dealing with cases pertaining to Value Added Tax (VAT) in
Delhi, filed this petition by way of Public Interest Litigation with the
following prayers:
"A. Directing the respondents and its subordinate
officials with delegated powers to release the refunds
claimed by all the registered dealers under the provision
of DVAT Act till the date of filing this petition before
this Hon'ble Court.
B. To grant interest to all the registered dealers as
provided under Section 42 of the DVAT Act whose
refunds have been released after the statutory period
provided under the provision of the DVAT Act.
W.P.(C) No.5263/2016 Page 1 of 4
C. To grant exemplary damages to all the registered
dealers whose refunds have been deliberately,
intentionally and without any reason have been delayed
in violation of the provisions of the DVAT Act.
D. Any other relief/order/direction may also be passed
by this Hon'ble Court which this Hon'ble Court deem fit
and appropriate in the circumstances of the present case
against the respondents."
2. We have heard the learned counsel for both the parties and perused
the material available on record.
3. It may at the outset be noted that one of the members of the Petitioner
association filed W.P.(C) No.4886/2016 as a PIL with the very same prayers
and the same was dismissed by us by order dated 25.05.2016 observing as
under:
"2. Apparently, the petitioner seeks to raise the issue
relating to alleged failure on the part of the respondents
in releasing the 'refund' to the registered dealers under
the provisions of the Delhi Value Added Tax Act, 2004.
It may be true that the petitioner is complaining about
the non-compliance with the statutory provisions,
however, we are of the view that the 'refund' under the
provisions of the Act being an individual claim, it is for
the aggrieved person, if any, to seek redressal of his
grievance. hence, in our considered opinion, the issue
sought to be raised deserves no consideration in a
public interest litigation."
4. Though the present petition has been filed with the very same
averments as in W.P.(C) No.4886/2016, it is contended by the learned
counsel for the Petitioner association that since the impugned action of the
Respondents in withholding the refund to which the registered dealers are
W.P.(C) No.5263/2016 Page 2 of 4
entitled to under the provisions of the Delhi Value Added Tax Act, 2004
(DVAT Act) is ex facie illegal apart from being in violation of the law laid
down by this Court in W.P.(C) No.3817/2010 dated 03.06.2010 titled M/s
Swarn Darshan Impex (P) Ltd. v. Commissioner, Dept. of Trade & Taxes
and Anr., the Petitioner association may be permitted to espouse the cause
in the interest of the public at large.
5. While drawing the attention of this Court to Sections 38, 39 and 42 of
the DVAT Act, it is contended that it is mandatory to make the refund
within two months after the date on which the return is furnished or the
claim for the refund is made by the dealer. Placing reliance upon the Swarn
Darshan Impex (P) Ltd. (supra), it is also contended that the impugned
action of the Respondents in withholding the refunds cannot be justified on
any ground whatsoever. It is alleged that not only the Respondents are
illegally withholding the refunds due to the dealers, but the interest payable
under the DVAT Act has also not been paid where the refunds are made
beyond the period provided under Section 38 of the DVAT Act and thus
compelling the dealers to take recourse to the legal remedies for recovery of
the amount to which they are entitled to.
6. To substantiate the plea that the refunds to various dealers are due for
the tax period from 01.04.2011 to 31.03.2015, the information furnished by
the Value Added Tax officers of Ward No.8, Ward No.10, Ward No.11,
Ward No.13 and Ward No.14 under the Right to Information Act, 2005 has
been annexed to the writ petition.
7. Though it is contended by the learned ASC for GNCTD appearing for
the Respondents that in the light of the earlier order passed by us in W.P.(C)
No.4886/2015, the petition is liable to be dismissed in limine, having taken
W.P.(C) No.5263/2016 Page 3 of 4
into consideration the fact that the cause, which apparently involves public
interest, is sought to be espoused by a registered association of legal
practitioners dealing with the issue in controversy on behalf of the dealers,
we are of the view that the interest of justice would be met if the Respondent
No.2/ Commissioner of VAT, New Delhi is directed to look into the issue
and take the necessary steps for rectification of the lapses, if any, in
implementation of the statutory provisions.
8. We accordingly dispose of the writ petition with a direction to the
Respondent No.2 to consider the issues raised in this writ petition by treating
the same as a representation. The Petitioner association is at liberty to make
a representation before the Respondent No.2 within two weeks from today
furnishing a list of specific instances where the refund is withheld. On
receipt of the same, the Respondent No.2, after making the necessary
enquiry into the allegations made in the writ petition, shall pass an
appropriate order in accordance with law within eight weeks and
communicate the same to the Petitioner association.
9. Writ petition is accordingly disposed of.
CHIEF JUSTICE
JAYANT NATH, J.
SEPTEMBER 16, 2016
pk
