Blue Star Ltd v. Commissioner Of Trade & Taxes

$~27 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 10020/2018 & CM Appl. Nos. 39029/2018 BLUE STAR LTD ..... Petitioner Through:

Mr. Rajesh Jain & Mr. Virag Tiwari, Advs.

versus COMMISSIONER OF TRADE & TAXES ..... Respondent Through:

Mr.

Anuj Aggarwal, ASC for GNCTD with Mr.Preet Pal Singh, Adv.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE PRATEEK JALAN

O R D E R

% 26.02.2019 CM Appl. 39030/2018 (exemption) Exemption allowed, subject to all just exceptions. The application is disposed of.

W.P.(C) 10020/2018 & CM Appl. Nos. 39029/2018 1.

The petitioner's grievance is that the Delhi VAT Authorities, by the impugned order have sought to demand amounts for the two period in 200708 [in the 3rd quarter and for the month of July, 2007] without any underlying assessment order.

2.

The facts are that accepting the petitioner's contention the Objection Hearing Authority ("OHA"), in the proceeding under Section 74 of the W.P.(C) 10020/2018

DVAT Act remitted the matter for fresh consideration on 10.06.2013. In terms of the mandate under Section 34(2), assessment had to be completed within one year in such eventuality; but it was not so in the present case. However, the impugned demand was issued under Section 37 on 12.09.2018.

3.

The petitioner relies upon the Division Bench ruling of this Court in Shaila Enterprises vs. Commissioner of Value Added Tax (2016) 94 VST 367 (Delhi) for the proposition that the limitation under Section 34, is not derogable. It cannot be circumvented towards recovery of alleged tax made after the period, which is void. That judgment was affirmed by the Supreme Court by its order dated 04.01.2017 when the Special Leave Petition filed by the Government of NCT of Delhi was rejected.

4.

After hearing learned counsel for the parties, this Court is of the opinion that given the declaration of law in Shaila Enterprises and the phraseology of Section 34(2), the demand in this case is unenforceable, illegal and is consequentially quashed.

5.

The writ petition is accordingly allowed.

S. RAVINDRA BHAT, J PRATEEK JALAN, J FEBRUARY 26, 2019 'pv'

W.P.(C) 10020/2018