TaxTMI 
TaxTMI 
2016 (6) TMI 220
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....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13 notices dated 16th November 2015 referred to in civil miscellaneous application No. 28227/2015 should be treated as withdrawn by the DT&T. It is accordingly recorded.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 to the Petit....
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....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 i....
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....ement Centre ILR 1990 Kar 3320. 10. Mr. Jain submitted that there were numerous instances where the power under Section 59 (2) had been exercised by the VATOs indiscriminately, 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 Rs. 50,000 under Section 86 (14) of the Act." 11. Mr. Jain also referred to Form 401 corresponding to Sections 67, 70 or 70....
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....the activities of any other person as the Commissioner may deem necessary. (3) The Commissioner may require a person referred to in sub-section (2) above, to (a) prepare and provide any documents; and (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 Cha....
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....ed by which any restriction in respect of such transaction has been imposed. Therefore, Section 45 is also not attracted." 16.1 The third decision relied upon 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 cle....
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....rst dealt with the expression 'such manner as may be prescribed" and distinguished the said expression from the expressions 'in the manner prescribed' or 'in the prescribed manner' 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 obligati....