AI Drafter 
TaxTMI 
TaxTMI 
2018 (9) TMI 887
X X X X Extracts X X X X
X X X X Extracts X X X X
....l contention was rejected. Learned counsel for the petitioner sought time to go through the order and make submissions. 4. Today, when the case is taken up for hearing, the learned counsel for the petitioner fairly submitted that the order passed by this Court in M/s.Empress Audio is squarely applicable to the case of the petitioner herein and therefore, the challenge to the VAT Audit has to necessarily fail. At this juncture, it will be useful to refer to the order passed in M/s.Empress Audio and the reasons as to why the Court rejected the contention raised by the petitioner therein, which is identical to that of the contention raised by the petitioner before this Court. The relevant paragraphs of the said decision are as follows:- "8. The prayer sought for by the petitioner is only to quash the VAT Audit report and the consequential notice issued, calling upon the petitioner to produce records on a particular date. The challenge to the VAT Audit is on the ground that it is without jurisdiction, as the VAT Audit has been authorised by the Joint Commissioner and not the Commissioner. 9. The learned counsel for the petitioner referred to the sworn statement of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....alone, which power, conferred by the Government on the Commissioner cannot be sub-delegated to any other authority, as the Commissioner himself is a delegate of the Government. Further, argument being, a delegate cannot subdelegate in the absence of any such specific statutory power. 13. In Jeevan Buy N.Save (supra), the petitioner dealer contended that VAT Audit was conducted based on authorisation of the Joint Commissioner by placing reliance on the statement recorded from the said dealer, which mentioned that the VAT Audit is pursuant to authorisation by the Joint Commissioner. Similar arguments as advanced in the instant case were put forth in the said case and the Court, after examining the contentions which were advanced, pointed out that though it has been stated that along with the order of authorisation, there is an annexure appended, but the same was not placed on record by the respondent before the Court and therefore, the names of entities, supposedly, identified for conduct of VAT Audit are not known. Therefore, the Court observed that it is quite possible that the petitioner's case was not even picked up for conduct of audit. Further, the Court p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....not been subjected to audit so far since 01/01/2007. (ii) Dealers (Traders only) whose total output tax < 90% of total input tax in 2013-14. (iii) Dealers whose value of inter-state branch/consignment transfer has increased more than 20% in 2013-14 over previous year. (iv) Dealers who made import/interstate purchase/transfer of taxable goods in 2013-14 and whose output tax < 90% of VAT payable on value of such inward goods. (v) Dealers who effected total purchase of goods from R.C. cancelled dears and claimed ITC of more than Rs. 10,000/- in 2013-14. (vi) Dealers who had paid average net VAT of Rs. 50,000/- and above every month in 2013-14 and such payment of tax remained within the range of + or - 5% of the average for atleast 9 months. 17. The Commissioner further directed that the procedure initiated in the VAT Audit manual shall be strictly followed and ordinarily all audit shall be completed within 15 days of commencement. The VAT Audit proposals were directed to be sent to territorial not later than 30 days from the date of commencement of audit. The Officers were warned that any violation of the time limit shall be dealt with sternly. F....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 administrated 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 well within his jurisdiction to issue such direction for effective and efficient administration of his department. Thus, the petitioner by placing reliance on the expression "authorised" used in the statement cannot discredit the entire proceedings alleging the same to be without jurisdiction. The Court being fully satisfied that VAT Audit has been authorised by the Commissioner in accordance with Section 64(4) of the Act, is not inclined to accept the case of the petitioner. 20. At this juncture, it would be relevant to take note of the submissions made by Mr.N.Inbarajan. Section 48 of the Act, gives power to the Government....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... done in the instant case. As pointed out earlier mere usage of the expression authorised by the Joint Commissioner in his proceedings, does not mean that the Joint Commissioner has commenced the audit on his own accord. It has to be borne in mind that the statute uses the expression "order", and does not use the expression "authorise". Thus, what is required under Section 64(4) is an order of the Commissioner and if there is an order to the said effect, then authorisation of lower level officers, by officers subordinate to the Commissioner, cannot be termed as ordering an audit, but it is a proceedings by which the order passed by the Commissioner, is implemented or carried forward. 22. As mentioned above, the decision in the case of Jeevan Buy N.Save (supra), is clearly distinguishable on facts. Sofar as the decision in the case of M/s.Arkema Peroxides India Pvt., Ltd., (supra), is also distinguishable on facts, because the department did not produce any document to dislodge the claim made by the petitioner. Similarly the decision in the case of M/s.Cabco Paradise Pvt Ltd., (supra), was rendered following decision in M/s.Arkema Peroxides India Pvt., Ltd.,. In the case of....