9911796707
TMI Blog2005 (8) TMI 626X X X X Extracts X X X X X X X X Extracts X X X X ..... f account in regular course of his business. Since the petitioner is enjoying tax holiday under section 39 of the Act, 1994, no tax is payable on the sales of goods manufactured in the unit. On April 5, 2004 a team of officials of Central section led by the Commercial Tax Officer visited the manufacturing unit and seized books of account. A notice in form IV was served upon the petitioner by the Commercial Tax Officer for contravention of provisions of section 63 of the Act, 1994 for not issuing cash memo or bills against the sales. After hearing the petitioner, penalty was imposed by an order dated October 1, 2004 without making any finding on the seized books of account, etc. On behalf of the petitioner, the learned lawyer submits that r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to sub-delegate its authority and therefore, by adding Explanation to the rule 205 the State Government has committed a legal mischief, conferring power upon the Commissioner to authorise such officer to act as "appropriate assessing authority". According to the learned lawyer, the State Government should have itself named the authority who would be deemed to be the "appropriate assessing authority" for the purpose of rule 205 of the said Rules, 1995. The action required to be done by the State Government has been wrongly conferred upon the Commissioner to discharge the action in violation of the doctrine of "delegatus non potest delegare". The proceeding, according to the learned lawyer being bad in law, is liable to be set aside. On b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy else. But at the same time, it does not mean that the power of legislation includes the power of delegation. Under section 104 of the Act, 1994 power has been given to the State to make Rules. Sub-section (1) to section 104 of the Act, 1994 provides that the State Government by notification may make Rules with prospective or retrospective effect for carrying out the purposes of this Act. The section 3 of the Act, 1994 further provides that the State Government may appoint the person to be the Commissioner for carrying out the purposes of the Act. The sub-section (4) of section 3 states as follows: "Subject to such restrictions and conditions as may be prescribed, the Commissioner may, by an order in writing, delegate any of his powers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than as regards matters of procedure. We have already pointed out that by section 104 of the Act, 1994 Legislature has delegated power to the State Government to make rules with prospective or retrospective effect for carrying out the purposes of this Act. Therefore, retrospective operation provided under rule 205 is neither illegal nor arbitrary, inasmuch as, there is no case of the petitioner that it has impaired his existing right or imposed on him a new liability. Therefore, we do not find any valid reason to hold that the Explanation of rule 205 is illegal only because retrospective effect was given. It is also argued that the State Legislature though has empowered the State Government to make Rules yet has not empowered it to subdel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s competence to act, under section 64 of the Act, 1994 since the rule 205 cannot confer any authority on the Commercial Tax Officer. Since such officer is not always an "appropriate assessing authority" the rule per se therefore, is ultra vires the Act, 1994. It is now settled under law as we know, that delegation may be challenged as unconstitutional or the statutory power has been improperly exercised. To establish that the delegated legislation is ultra vires the following conditions, therefore, are to be satisfied: (1) that they run counter to the provision of the Act and (2) that they have been made in excess of the authority delegated by the Legislature. According to learned lawyer for the petitioner, the Explanation of rule 205 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 05 and disposes of the matter in dispute does not create thereby any legal complication. The "appropriate assessing officer" under rule 2(1)(c) in respect of the dealer may decide all other points in dispute raised under the statute. Therefore, rule 205 is not against the definition of the rule 2(1)(c) and does not ultra vires the Act, 1994. It transpired from the facts of this case that there was alleged illegalities in serving the copy of necessary orders and notices relating to the proceeding in question upon the petitioner. In our opinion, these matters relate to the facts can be agitated before the revisional authority. Since, there is no finding on this point, we cannot take up these matters for decision at this stage. The petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X
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