The court upheld the necessity for a 5% pre-deposit of the disputed VAT demand, acknowledging an arguable defense from the revenue, while providing for a hearing on merits.

JUDGMENT

Rajiv Shakdher, J. (Oral)--Issue notice.

1.1. Mr Gautam Narayan accepts notice on behalf of the respondent.

2. With the consent of the counsel for the parties, the appeal is taken up for hearing and final disposal, at this stage itself.

3. The appellant has approached this Court, with the grievance, that the Delhi Value Added Tax, Appellate Tribunal, Delhi [in short "Tribunal"] has not completely waived the pre-deposit required to be made under the Delhi Value Added Tax Act, 2004 [in short "Act"].

4. It is not in dispute that, at present, the appellant is required to deposit 10% of the disputed demand, albeit by 18.07.2022.

5. Mr Ravi Kant Chandhok, who appears on behalf of the appellant, says that the issue involved on merits, is covered by the judgments rendered by the Tribunal, in favour of the appellant.

5.1. In this context, reference is made to the following judgements rendered by the Tribunals: M/s Deepali Designs & Exhibits (P) Ltd. vs. Commissioner of Trade & Taxes, Delhi, dated 05.10.2018, rendered in Appeal No. 686-687/ATVAT/13-14 and M/s Ases Security (P) Ltd. vs. Commissioner of Trade Taxes, Delhi, dated 06.10.2021, rendered in Appeal No. 196/ATVAT/2020-21.

6. Briefly, the issues involved are: Firstly, as to whether the Objection Hearing Authority (OHA) had the power, under Section 74 of the Act, to remand the matter to the Assessing Authority? Secondly, if such a power was vested in the OHA, whether the assessment, pursuant to remand, had to be carried out within the limitation period prescribed under Section 34 of the Act?

6.1. It is these aspects which Mr Chandok contends, are covered by the decisions of the Tribunal, and therefore, the petitioner should be given a complete waiver qua the disputed tax demand.

7. In support of his plea, that in such circumstances complete waiver has been accorded, reference has been made by Mr Chandok, to the decision of the Division Bench of this Court dated 17.01.2017, rendered in VAT Appeal 2/2017, titled M/S SREI Equipment Finance Ltd. Vs. Commissioner of Value Added Tax & Anr..

8. Having heard the counsel for the parties and perused the record, in our opinion, the respondent/revenue has an arguable defence, as to whether the period of limitation prescribed under Section 34 of the Act would be applicable where remand is ordered by OHA.

8.1. However, at this juncture, we do not wish to give a definitive view in the matter, especially, given the circumstance, that the Tribunal, it appears, has taken a view in favour of the appellant, in the aforementioned decisions.

9. Insofar as the decision of this Court in M/S SREI Equipment Finance Ltd. is concerned, the directions for complete waiver were issued by this Court, keeping in mind, the decision of this Court dated 28.08.2015, passed in W.P.(C) No.7379/2015, titled M/s. Bhumika Enterprises Vs. Commissioner of Value Added Tax & Anr..

9.1. Paragraph 8 of the decision in M/S SREI Equipment Finance Ltd. is suggestive of the fact that in M/s Bhumika Enterprises, the Court was concerned with the issue relating to system generated orders. The Court was of the opinion that such orders could not stand the scrutiny of law.

9.2. In M/s SERI Equipment Finance Ltd., evidently, a similar situation arose which, as it appears, persuaded the court to grant complete waiver.

10. As indicated above, in the matter at hand, there is an arguable defence available to the respondent/revenue. The matter needs deliberation and cogitation.

11. Having regard to the overall circumstances, we are of the view that the interests of both sides would be served if the appeal is disposed of with the following directions:

(i) The