2020 (2) TMI 852 - HC - GST

Delegation of powers u/s GST - delegation of powers by Commissioner of State Tax to the Special Commissioner of State Tax and the Additional Commissioners of State Tax - Legality and validity of the Notification No.EST/1/Jurisdiction/B.2168 dated 5th July 2017 - HELD THAT - The delegation is the act of making or commissioning a delegate. It generally means parting of powers by the person who grants the delegation and conferring of an authority to do things which otherwise that person would have to do himself. Delegation is defined in the Black s Law Dictionary as the act of entrusting another with the authority by empowering another to act as an agent or representative . In P.Ramanatha Aiyar s, The Law Lexicon, delegation is the act of making or commissioning a delegate. Delegation generally means parting of powers by the person who grants the delegation, but it also means conferring of an authority to do things which otherwise that person would have to do himself . In the impugned notification it has been stated that the functions delegated shall be under the overall supervision of the Commissioner. When the Commissioner stated that his functions were delegated subject to his overall supervision, it did not mean or should not be construed as if he reserved to himself the right to intervene to impose his own decision upon his delegate. The words in the last part of the impugned notification would mean that the Commissioner could control the exercise administratively as to the kinds of cases in which the delegate could take action. Once the powers are delegated for the purpose of Section 69 of the Act, the subjective satisfaction, or rather, the reasonable belief should be that of the delegated authority The principle is devolving power is permitted in the cases where the nature, scope, and purpose of the power in legislation means that it is unlikely that the Parliament intended that the power is to be exercised personally, and the only practical way the power can be exercised is by the officers who are responsible to the person (who has the power by legislation). This is also known as the principle of agency where the agent is acting in the principal s name. In the case on hand, Section 5(3) of the Act specifically confers power upon the Commissioner to delegate his functions. The power under Section 69 of the Act can be exercised by the authority upon whom the power is delegated provided the delegatee has reasons to believe that the assessee has committed offence under Section 132 of the Act. Therefore, the condition precedent, i.e. 'reasonable belief', for the purpose of exercise of power under Section 69 of the Act remains the same. Application dismissed.

Issues Involved:
1. Legality and validity of the Notification No. EST/1/Jurisdiction/B.2168 dated 05.07.2017 delegating powers of the Commissioner of State Tax.
2. Authority of the Commissioner to delegate powers under Section 69 of the Gujarat Goods and Services Tax Act, 2017 (GGST Act).
3. Interpretation of "reasonable belief" under Section 69 of the GGST Act.
4. Procedural and administrative propriety in the exercise of delegated powers.
5. Compliance with statutory provisions and constitutional principles in the delegation of powers.

Detailed Analysis:

1. Legality and Validity of the Notification No. EST/1/Jurisdiction/B.2168 dated 05.07.2017:
The primary issue was whether the Commissioner of State Tax could delegate his powers under the GGST Act to the Special Commissioner and Additional Commissioners of State Tax through the impugned notification. The court upheld the validity of the notification, stating that the delegation was expressly authorized under Section 5(3) of the GGST Act. The court emphasized that the delegation is necessary due to the administrative complexities and the extensive duties under the new tax regime. The notification was deemed to be under the overall supervision of the Commissioner, ensuring that the delegated powers are exercised properly.

2. Authority of the Commissioner to Delegate Powers under Section 69 of the GGST Act:
The court examined whether the Commissioner could delegate his power to arrest under Section 69 of the GGST Act. It was argued that the power to form a "reasonable belief" should be exercised by the Commissioner himself and not by a delegate. However, the court concluded that the statute explicitly allows such delegation. The court referred to several precedents, including the Supreme Court's decision in Sahni Silk Mills (P) Ltd. v. Employees' State Insurance Corporation, which supports the principle that administrative functions, even if statutory, can be delegated if expressly permitted by the statute.

3. Interpretation of "Reasonable Belief" under Section 69 of the GGST Act:
The court addressed the contention that the "reasonable belief" required for arrest under Section 69 should be that of the Commissioner and not a delegated authority. The court clarified that once the powers are delegated, the reasonable belief should be that of the delegate. The court rejected the argument that the phrase "reasonable belief" limits the delegation, stating that the legislative intent and statutory provisions support the delegation of such powers.

4. Procedural and Administrative Propriety in the Exercise of Delegated Powers:
The court scrutinized the procedural aspects and administrative propriety in the exercise of delegated powers. It was highlighted that the delegation must be under the overall supervision of the Commissioner, ensuring that the administrative control and oversight are maintained. The court emphasized that the Commissioner retains the ultimate authority and can control the exercise administratively, but not the essential power to decide specific cases.

5. Compliance with Statutory Provisions and Constitutional Principles in the Delegation of Powers:
The court examined whether the delegation complied with statutory provisions and constitutional principles. It was observed that the delegation is in line with the statutory framework provided under the GGST Act. The court noted that the delegation is necessary for the effective administration of the new tax regime and does not violate any constitutional principles. The court also referred to similar provisions under other tax laws, such as the Customs Act and the Central Excise Act, which allow for the delegation of powers.

Conclusion:
The court upheld the validity of the Notification No. EST/1/Jurisdiction/B.2168 dated 05.07.2017, allowing the delegation of the Commissioner's powers to the Special Commissioner and Additional Commissioners of State Tax. The court clarified that the "reasonable belief" required under Section 69 of the GGST Act could be formed by the delegated authority. The delegation was deemed necessary for the effective administration of the GGST Act and was found to be in compliance with statutory and constitutional provisions. The writ applications challenging the notification were rejected, and the rule was discharged.

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