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2016 (4) TMI 226 - HC - VAT and Sales TaxRe-opening of assessment under DVAT - validity of powers of delegations - Supply of fresh reasons to believe - Default notices under Sections 32 and 33 of the DVAT time barred - Reassessment of returns done under Section 32 of the DVAT Act after the expiry of 4 years from the end of the year for which the person furnished a return - No mention made of any concealment, omission or failure by the Petitioner in furnishing any material particulars - Held that:- it is not legally permissible for the DT&T at this stage to supply fresh reasons to believe, other than what is recorded in the file. While the reasons recorded in the file speak of the concealment by the Petitioner of “substantial part of his turnover”, the real reason as transpired during the course of hearing is regarding excessive claim of exemption made by Petitioner. There is, therefore, certainly no failure/omission on the part of the Petitioner to furnish material particulars which forms the basis of re-assessment in terms of the proviso to Section 34 of the DVAT Act. The proviso is very clear that there has to be “concealment, omission or failure to disclose fully material particulars” by the Petitioner. In relation to the claim for exemption there is nothing in the “reasons to believe” as recorded by the Respondent to show that there was any concealment or omission or failure by the Petitioner to disclose material particulars. The materials gathered by the DT&T, if any, ought to have a live nexus to the formation of the belief that there is escapement of turnover from assessment. The reasons to believe as recorded make no reference to any such material. Power and jurisdiction of the Assistant Commissioner (VAT Audit) - Issuance of notice of reopening the reassessment made by the orderSpecial Commissioner (Special Zone) under Section 67(2) of the DVAT Act - Held that:- Under Section 67(2) of DVAT Act there is no power of delegation as such but the power to issue orders “for the due and proper administration” of the DVAT Act and “all such persons engaged in the administration of this Act shall observe and follow such orders, instructions and directions of the Commissioners.” It is not understood how the Special Commissioner (Special Zone) could have delegated powers in terms of Section 67(2) of DVAT Act and in particular, the power of reopening the reassessment to the Assistant Commissioner (VAT Audit). Interestingly, the impugned notice is issued by the Assistant Commissioner (VAT Audit) and not by the Assessing Officer who has been duly empowered to issue it. Re-opening of assessment - in exercise of the powers under Section 34 of the DVAT Act, - Held that:- the VATO concerned is expected to act independently and not under the dictates of any superior officer. Here, the Additional Commissioner (VAT Audit) prepared a note proposing the re-opening of assessment which was approved by several of the superior officers up to the level of the Commissioner, VAT. - Decided in afvour of petitioner
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