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TMI Blog2021 (2) TMI 759X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision of this Court rendered in W.P.No.7564 of 2015 dated 18.03.2015, in the case of M/s.Arkema Peroxides India Pvt. Ltd., Vs The Joint Commissioner (CT), Chennai and others, wherein, in Paragraph 5 it was held as follows:- "5. Though the respondents has not produced any document to prove the contention of the respondents and it may be correct that there may be instruction in the office note, a reading of the impugned order would show that the Joint Commissioner has authorised to do the audit of the business of the registered dealer viz., the petitioner and the same is not stipulated under Section 64(4) of the Tamil Nadu Value Added Tax Act, which reads as follows: "Section 64(4) The Commissioner may order audit of the business of any registered dealer by an officer not below the rank of Deputy Commercial Tax Officer. For the purpose of this Section, the selection of dealers for audit shall be made amongst the dealers- 64(4) (a) who have not filed returns within the prescribed period; and 64(4) (b) who have claimed exorbitant amount of refund of tax; or 64(4) (c) who have filed returns, but in the opinion of the Commissioner he is not satisfied with the correctnes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on itself, the Commissioner under Section 64(4) of the Act is not expected to issue a general guideline or a Circular for guiding all the lower authorities. Section 64(4) of the Act envisages an individual order for audit of the books and accounts and other revenue records of the assessee for a particular period and it has to be individual order showing the application of mind to the facts and circumstances of each case for each period. The power to delegate further is not provided under Section 64(4) of the Act. Therefore, the manner in which the impugned order dated 16.05.2014, has been passed by the learned Commissioner laying down certain limits or criterias quoted above leaving it free for the Joint Commissioner to authorise officers below to undertake such audit is wholly untenable and unsustainable order. 11. The audit of the books and accounts of an assessee is required not only under the provisions of Section 64(4) of the Act but such provisions, which may be applicable to the assessee concerned, may be under the other relevant statutes also like the provisions of the Companies Act, if an assessee is a limited Company, under the provisions of the Income Tax Act, vide Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1825 of 2015. ii. M/s.Empress Audio, Chennai Vs Commissioner of Commercial Taxes, Chennai and others rendered in W.P.No.6031 of 2018. iii. Pooran Mal Vs The Director of Inspection (Investigation) New Delhi and others, (1974) 1 SCC 345. 7. It is submitted that in M/s.Empress Audio, Chennai case referred to supra, the contention of the respondents was accepted in Paragraph 19, which reads as under:- "19. I agree with the submissions made by Ms.G.Dhana Madhuri, that it is impossible for the Commissioner to name Deputy Commercial Tax Officers or Commercial Tax Officers, who will conduct the VAT Audit in respect of a particular dealer. The Commissioner being the Head of Department is required to discharge several duties, which are onerous. Therefore, the manner in which the office and the staff have to be utilised and administered is well open to be regulated by the Head of Department. It is not for the dealer to dictate terms as to how the Commercial Tax Department should organise its business. The directives issued to the Joint Commissioner to take forward the direction to conduct audit is an administrative decision by the Commissioner and being the Head of Department, it is we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt on the completion of audit may be sent every week. Sd/ - K.Manivasan Commissioner of Commercial Taxes Additional Commissioner (SMR) Encl: List of dealers Copy to: All the Joint Commissioners (Territorial) for information and necessary action. 10. The learned counsel for the Government Advocate further submits that the Commissioner of Commercial Taxes has not delegated the power to conduct audit to the subordinate officers. On the other hand, the Commissioner of Commercial Taxes has merely identified the assessee in respect of whose affairs, audit can be conducted under Section 64(4) of the TNVAT Act, 2006 and has merely authorized the Joint Commissioner to identify the concerned officer for conducting the audit. The learned counsel for the Government Advocate further submits that the decision relied by the learned counsel for the petitioner in Joint Commissioner (CT), Chennai and others Vs M/s.Original Vel Sporting News, Chennai in W.A.No.1757 of 2019 dated 04.06.2019 is under review and even if the authorization was bad, as per the decision of the Hon'ble Supreme Court in Pooran Mal Vs The Director of Inspection (Investigation), New Delhi and others, (1974) 1 SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the statements were recorded in the presence of a Commercial Tax Officer, by itself, will not mean that there is violation of Section 64(4) of the Tamil Nadu Value Added Tax Act, 2006. It merely explained that a Commissioner may order for audit of the business of any registered dealer by an officer not below the rank of Deputy Commercial Tax Officer. In this case, authorization to conduct the Audit was based on the order of the Commissioner of Commercial Taxes to all the Joint Commissioners (Enforcement). The first respondent had in turn conducted the Audit with the help of the second respondent. Merely because the statements were recorded in front of the second respondent, by itself, will not mean that the Audit was carried out by the second respondent in contravention of 64(4) of the Tamil Nadu Value Added Tax Act, 2006. 16. By a letter dated 24.10.2013, it was also confirmed that the VAT Audit was conducted in respect of 27 units and that the VAT Audit was completed for 24 units and that the proposals were sent to about 22 Assessing Authorities in respect of completed cases. Only 3 cases were pending. The statement also states that about 260 notices were to be issued and in r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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