Murlidhar Vijay Kumar vs Value Added Tax Officer and Others

Sanjiv Khanna, J.—The Petitioner, Murlidhar Vijay Kumar has filed an appeal before the Appellate Tribunal, Value Added Tax against the demand on account of tax and penalty for the tax periods September 2005, April 2006, May 2006 and June 2006. The Petitioner had filed applications for waiver of pre-deposit and by the common order dated 11th September, 2009, the Petitioner was directed to deposit Rs. 10,00,000/- as a condition precedent for hearing the appeals on merits. Thereafter, the Petitioner filed an application pointing out that they were entitled to refund of Rs. 22,58,343/- for different periods from the Revenue. It was pointed out that the Petitioner had furnished surety for Rs. 50,00,000/- and bank guarantee of Rs. 25,00,000/- which have to be discharged, but the Revenue has not discharged them. By the impugned order dated 28th February, 2011 the application has been dismissed.

Before us also similar submissions have been made. It is submitted that on the one hand the Petitioner has been compelled to make a pre-deposit and at the same time the Revenue has not refunded the amounts due from them. Learned Counsel for the Revenue has controverter the said statement and has submitted that the order passed by the Tribunal is justified as the two periods i.e. the period for which the refund is claimed and the period for which the tax and penalty have been raised and challenged in appeal are different.

Out of Rs. 35,22,931/-, which is subject matter of appeals, nearly Rs. 18,40,000/- is claimed as due on account of penalty. We have further noticed that vide order dated 2nd August, 2008, Additional Commissioner-III, Department of Trade and Taxes, Govt. of NCT of Delhi had accepted the objections raised by the Petitioner for the period 1st April, 2005 to 31st March, 2006 and had issued the following directions:

In view of the above, the objection filed by the dealer u/s 32 is accepted and filed u/s 33 is partly accepted, subject to the deposit of the above referred demands by the objector, and verification of ISS transactions and transporters address by the VATO concerned with invoice, G Rs, C Form ad payment received by the objector. The VATO will verify from the HPCL about the status of discount offered by them to the objector.

The said directions have not been carried out till today as a result of which refund due to the Petitioner has not been quantified and paid. Earlier also the Petitioner was compelled to file writ petition No. 18111/2006 when the Sales Tax Department had raised various demands but application for refund was not considered. C.M. No. 210/2007 filed in the said petition was disposed of vide order dated 20th April, 2007 directing the Petitioner to furnish bank guarantee to the extent as stated with a direction to the parties to appear before the First Appellate Authority on 21st May, 2007.

Keeping in view the aforesaid facts, it is directed that on the Petitioner depositing Rs. 6,00,000/- within a period of 8 weeks, Appeal Nos. 201-204/ATVAT/08-09 will be heard on merits. The Respondent No. 1, the Value Added Tax Officer, Ward No. 85 will examine and comply with the directions issued by the Additional Commissioner-III in the order dated 2nd April, 2008 within a period of seven weeks from today. The Petitioner will appear before the said officer along with copy of this order on 18th April, 2011 at 2.30 pm., when a date for hearing will be fixed.

The writ petition is accordingly disposed of.