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2016 (6) TMI 220 - HC - VAT and Sales TaxValidity of notices issued during the pendency of this petition - Section 59(2) of the Delhi Value Added Tax Act, 2004 - Call for production of records, books of accounts, registers and other documents etc. - No rule had been framed under Section 102(2)(z) of the DVAT Act in regard to the exercise of the power under Section 59(2) thereof - whether in the absence of such a rule, the exercise of the powers under Section 59(2) of the DVAT Act can not be precluded. Held that:- the provision of Section 59 of the DVAT Act 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. 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 can be given effect to even in the absence of the rules. Therefore, in the absence of any rules being framed under Section 102(2)(z) read with Section 59(2) of the DVAT Act, the power of the Commissioner under Section 59(2) of the DVAT Act to call upon a person to produce the books of accounts and other documents cannot be exercised. Issued of direction to the Respondent to frame rules in exercise of the power under Section 102(2)(z) of the DVAT Act - Held that:- 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. 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. - Petition disposed of
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