BAJAJ OVERSEAS IMPEX Vs. SPECIAL COMMISSIONER

JUDGEMENT

(1.) These writ petitions raise common issues and are, therefore, being decided together. We shall refer to the facts of the W.P.(C) No.2763/2013. The petitioner has challenged the order dated 21.03.2013 whereby the Special Commissioner has directed the petitioner to deposit a sum of Rs. 25 lacs as a condition precedent for hearing the objections. While doing so, the said Special Commissioner invoked the provisions of the 3rd proviso to Section 74(1) of the Delhi Value Added Tax Act, 2004 (hereinafter referred to as the "said Act"). The said 3rd proviso was introduced with effect from 01.10.2011 by virtue of the Delhi Value Added Tax (Second Amendment) Act, 2011.

(2.) In respect of W.P.(C) No.2763/2013, the relevant period is the financial year 2010-2011 whereas in W.P.(C) No.2766/2013, the relevant period is the financial year 2008-2009. In so far as W.P.(C) No.2763/2013 is concerned, the petitioner had filed returns on a monthly basis under the assessment procedure provided in Section 31 of the said Act. Subsequently, the Value Added Tax Officer passed 12 separate default assessment orders for each month of the financial year 2010-2011 on 26.12.2012. By virtue of the said default assessment orders an additional tax demand of Rs. 83,20,595/- was raised. The interest amount was also computed at Rs. 25,43,571/- and, therefore, the disputed tax amount along with interest thereon was computed at Rs. 1,08,64,166/-. In addition, penalties were also imposed totaling to Rs. 89,17,873/-. Since the petitioner was dissatisfied with the default assessment orders, the petitioner filed objections under Section 74 of the said Act on 11.02.2013. As a pre-condition for hearing those objections, the Special Commissioner (the Objection Hearing Authority) by virtue of the impugned order dated 21.03.2013, as mentioned above, imposed a pre-condition of a deposit of Rs. 25 lacs being made by the petitioner. It is against that order that the petitioner in W.P.(C) No.2763/2013 is before us. In the other writ petition, that is W.P.(C) No.2766/2013, a similar sequence of events has occurred and it ultimately resulted in the impugned order dated 19.03.2013 whereby the petitioner has been asked to pre-deposit 25% of the disputed tax and interest and 10% of the penalty amount.

(3.) In both these petitions, the contention raised on behalf of the petitioner is that the 3rd proviso to Section 74(1) did not exist on the statute book during the relevant period, that is 2008-2009 in W.P.(C) No.2766/2013 and 2010-2011 in W.P.(C) No.2763/2013. Secondly, it was contended that their right to file objections was a substantive right and was more or less like the right to file an appeal. At the point of time when they filed their returns, the 3rd proviso to Section 74(1) of the said Act did not exist on the statute book. Therefore, their substantive right of preferring objections without the requirement of making a pre-deposit could not be taken away by virtue of an amendment which was neither expressly retrospective nor by implication. In support of these arguments, the learned counsel for the petitioners relied upon the following decisions:-