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2015 (12) TMI 1087 - DELHI HIGH COURT

2015 (12) TMI 1087 - DELHI HIGH COURT - [2016] 92 VST 187 (Del) - Delegation of the Commissionerís powers u/s 68 of DVAT - validity of order passed u/s 36A - Held that:- An order under Section 36A(8) has to be passed by the Commissioner in writing. Section 66(3) specifically provides that the Commissioner and the Value Added Tax Authorities shall exercise such powers, as may be conferred upon them, and perform such duties, as may be required by or under this Act. In other words, it is only the C .....

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, it is only the Commissioner who can pass an order under Section 36A(8) unless and until the power of the Commissioner has been delegated under Section 68 of the said Act to the VATO. - We could have understood if this power of the Commissioner had been delegated by the Commissioner in terms of Section 68 of the said Act to the VATO. But that has, admittedly, not been done. As such, the impugned order dated 07.08.2013 is liable to be quashed as the VATO did not have the jurisdiction to pass suc .....

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ondent No.2/Value Added Tax Officer (hereinafter referred to as the VATO ). 2. The contention of the petitioner is that the order which has been passed under Section 36A(8) of the Delhi Value Added Tax Act, 2004 (hereinafter referred to as the said Act ) is without jurisdiction. It is submitted that under the said provision, it is only the Commissioner, who could pass an order and not the VATO. While there could be delegation of the Commissioner s powers under Section 68 of the said Act, it is t .....

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said Act, the Commissioner had authorized the VATO to pass such an order. Therefore, according to Mr Satyakam, the order passed by the VATO is not without jurisdiction and cannot be set aside on this ground. 4. Before we comment upon the rival contentions, it would be necessary to set out the provisions of Section 36A(8) of the said Act, which reads as under:- 36A. xxxx xxxx xxxx xxxx (8) If any person as is referred to in this section fails to make the deduction or, after deducting fails to dep .....

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wers. The said Section reads as under:- 68 Delegation of Commissioner s powers Rules: (1) Subject to such restrictions and conditions as may be prescribed, the Commissioner may delegate any of his powers under this Act to any Value Added Tax authorities. (2) Where the Commissioner delegates his powers under Chapter X, the delegate shall carry and produce on demand evidence in the prescribed form of the delegation of these powers when exercising the powers. (3) Where the Commissioner has delegate .....

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tion 74 of this Act may be exercised by that person, even though the person determining the objection is equal in rank to the person whose decision is under objection. 6. Section 66 of the said Act is also relevant and the same reads as under:- 66. Value Added Tax Authorities: (1) For carrying out the purposes of this Act, the Government shall appoint a person to be the Commissioner of Value Added Tax. (2) To assist the Commissioner in the administration of this Act, - (a) the Government may app .....

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nd perform such duties as may be required, by or under this Act. (4) The powers exercised by the Value Added Tax authorities for the making of assessments of tax, the computation and imposition of penalties, the computation of interest due or owed, the computation of the entitlement and the amount of any refund, the determination of specific questions under section 84, the making of general rulings under section 85, and the conduct of audit or investigations shall, for the purposes of this Act, .....

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