9911796707
TMI Blog2016 (6) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... spection of production of records. The Commissioner has to exercise the power for 'the proper administration' of the DVAT Act, he has to make assure that what is being asked to be produced, in the form of books of accounts and other documents, are "related to the activities" of either the person to whom such notice is issued or any other person as the Commissioner may deem necessary. The Commissioner has to decide what document should be asked to be produced. It is another matter that there have been instances of misuse of the powers. The Court has had to step in to correct such misuse. That by itself, however, does not make the provision bad in law. It also does not mean that in the absence of a Rule, the power under Section 59 (2) is incapable of being exercised. It is in this context that the language used in Section 45 of TNHRCE Act or Section 45 of the Maharashtra Cooperative Societies Act, 1960 or Section 38 of the Bangalore Development Authority Act, 1976 became relevant. In each of the above instances, the language of the provision was such that the exercise of the power was dependent on the framing of the Rules. However, Section 59 (2) of the DVAT Act is so worded that it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Narayan, learned Additional Standing counsel appearing for the DT&T, that on 24th September 2015, the Commissioner of VAT had passed an order under Section 67 (2), 68 and 106 of the DVAT Act read with Section 9 of the Central Sales Tax Act, 1956 ('CST Act') to the effect that the Assistant Commissioner, Ward-206 who would exercise jurisdiction as far as the Petitioner is concerned and that this had to be read with the order dated 12th November 2013 issued by the Commissioner (VAT) inter alia delegating the powers of assessment and re-assessment under Section 32 of the DVAT Act to all officers not below the rank of the Assistant VATO. The Court recorded in para 6 of its order dated 4th March 2016 as under: "6. Mr Narayan, ASC on instruction of Mr M. K. Aggarwal, Assistant Commissioner, states that all the notices issued to the Petitioner hereinbefore i.e. the notices which have been challenged in the present petition as well as the 13 notices dated 16th November 2015 referred to in civil miscellaneous application No. 28227/2015 should be treated as withdrawn by the DT&T. It is accordingly recorded. Mr Narayan states that Mr M. K. Aggarwal will now issue a fresh notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dustries (order dated 19th February 2015 in Sales Tax Appeal No. 65 of 2014) and submitted that absence of such a rule will not preclude the exercise of the powers under Section 59 (2) of the DVAT Act. The Court then adjourned the case to enable learned counsel for the Respondent to examine the issue and for the learned counsel for the Appellant to examine whether Rules of a similar nature had been framed in the VAT statutes of other States. 7. Mr. Jain has since placed on record his written submissions enclosing the details of the statutes in other States. Mr. Jain points out that in at least 10 VAT statutes, there exists a similar provision enabling the Commissioner to call for production of records subject to such conditions "as may be prescribed". In these 10 States, Rules have been framed in terms of the said provision. A tabulation of such State Acts and the corresponding Rules in the said States are set out as under: S.No. State VAT Act Section VAT Rules Rule 1. Assam VAT Act 2003 74 (1) Assam VAT Rules 2005 40 2. Bihar VAT Act 2005 56 (1) Bihar VAT Rules 2005 35 3. Gujarat VAT Act 2003 67 (1) Gujarat VAT Rules 2006 48 (notice in form 401) 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minately, as an instrument of harassment. He illustratively referred to the following instances: "(a) to seal premises for non-production of books of accounts; (b) to make default notice of assessment of tax, interest and penalty, ignoring that Section 59 falls under Chapter X, whereas Section 32 and 33 for making assessments fall under Chapter VI of the Act; (c) to illegally deny/block the refund; (d) to block the downloading of forms under the Central Act; when no such provision exists under Rule 5 (4) of the Central Sales Tax (Delhi) Rules, 2005; (e) to seek explanation/reason for shortfall in the deposit of tax as compared to the earlier years; (f) to reopen the concluded assessments on multiple occasions; (g) to mop up maximum amount of penalty by issuing multiple notices in a tax period/financial year, as each offence, if committed, would attract penalty of ₹ 50,000 under Section 86 (14) of the Act." 11. Mr. Jain also referred to Form 401 corresponding to Sections 67, 70 or 70A of the Gujarat Value Added Tax Act, 2003 which requires the applicant to produce before the Assessing Officer ('AO') documents the description of which is given therein. Lik ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) verify the answer to any question; in the manner specified by him. (4) The Commissioner may retain, remove, take copies or extracts, or cause copies or extracts to be made of the said records, books of account, registers and documents without fee by the person in whose custody the records, books of account, registers and documents are held." 14. A plain reading of the above provision indicates that the Commissioner can exercise the powers under Section 59 (2) of the DVAT Act to call upon the dealer or any other person to produce records, books of accounts etc. for (i) the proper administration of the DVAT Act and (ii) subject to such conditions "as may be prescribed." The expression 'as may be prescribed' has to be interpreted as requiring Rules to be framed in the matter of inspection of production of records. In Dr. Subramanian Swamy v. State of Tamil Nadu (supra) the Supreme Court was interpreting Section 45 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 ('TNHRCE Act') which envisages the appointment of an Executive Officer ('EO') by the Commissioner HRCE, subject to such conditions as may be prescribed. In that cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by Mr. Jain is Telecom Employees Cooperative Housing Society Limited (supra) where the Karnataka High Court was interpreting Section 38 of the Bangalore Development Authority Act, 1976 which stated that "subject to such restrictions, conditions and limitations as may be prescribed, the Authority shall have power to lease, sell or otherwise transfer any movable or immovable property which belongs to it, and to appropriate or apply any land vested in or acquired by it for the formation of open spaces or for building purposes or in any other manner for the purpose of any development scheme." 16.2 In that context, the Karnataka High Court observed that the power under Section 38 is unavailable "unless those restrictions, conditions and limitations are prescribed" and concluded that "when power is made available, conditional upon prescription, the phrase 'subject to' in the context meaning only conditional upon, the exercise of power in the absence of such prescription is illegal." 17. There is a clear distinction between the wording of the provisions considered in the above decisions, and Section 59 (2) of the DVAT Act. It is not as if there are no guidelines in Section 59 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nner' used in certain other statues. It is then observed as under: "In one of the cases decided by this Court, to be referred later in this judgment "as may be prescribed" has been held to mean "if any". It is thus clear that such expression leaves the scope for some play for the workability of the provision under the law. The meaning of the word "as" takes colour in context with which it is used and the manner of its use as prefix or suffix etc. There is no rigidity about it and it may have the meaning of a situation of being in existence during a particular time or contingent, and so on and so forth. This is to say, something to happen in a manner, if such a manner is in being or exists, if it does not, it may not happen in that manner. Therefore, the reading of the provision under consideration makes it clear that manner of declaration is to be followed "as may be prescribed" i.e., "if any" prescribed. 13. Thus, in case manner is not prescribed under the rules, there is no obligation or requirement to follow any, except whatever the provision itself provides viz., Section 19 in the instant case which is also incomplete in itself even without any manner being prescribed as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a direction should be issued to the Respondent to frame rules in exercise of the power under Section 102 (2) (z) of the DVAT Act. 23. There are a few limitations on the scope of the powers of this Court under Article 226 of the Constitution. One such limitation is the inability to issue a mandamus to the Respondent/Executive to frame a rule in respect of any particular topic or issue and in a specific manner. That is the prerogative of the Executive. 24. However, that does not preclude the Petitioner, along with other dealers, to make a representation to the Government of NCT of Delhi and in particular to the DT&T that Rules in terms of Section 102 (2) (z) read with Section 59 (2) of the DVAT Act should be framed. They can draw the attention of the GNCTD to the provisions in the ten other states which have VAT statutes. If such representation is made, the Court has no doubt that it will receive adequate and serious consideration in the hands of GNCTD and specifically, the DT&T, particularly since such a rule will serve the salutary purpose of guiding the officers in the exercise of their powers and serve to also act as a check on the possible abuse of powers. 25. No other direc ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
