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TMI Blog2016 (2) TMI 895X X X X Extracts X X X X X X X X Extracts X X X X ..... petitions are directed against the order dated 16.03.2013 purportedly issued under Section 60 of the Delhi Value Added Tax Act, 2004 whereby the three separate premises of the petitioner at Nehru Place, Moti Nagar and Peera Garhi were sealed by the Value Added Tax Officer (Special Zone). It may be pointed out that the survey was conducted on 15.03.2013 (Friday) when the Value Added Tax Officer arrived at the said premises of the petitioner at about 5.30 p.m. in the evening and demanded important documents. The representative of the petitioner stated that he would provide those documents but that would require some time as information had to be culled out, collated and reconciled before the same could be presented to the department. It was also pointed out that the office of the petitioner had shifted from Okhla Industrial Estate to Nehru Place and that the bulk of documents were lying in boxes. The photographs of the said office were also shown to us which indicate that the process of shifting was going on. Further, the computer systems had also not been connected to their main server in Chennai in order to enable them to collect all the details. The learned Senior Counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within one week thereafter. Renotify on 29.04.2013, when the issue with regard to 'security' for de-sealing under sections 60(4) of the said Act shall be taken up for hearing amongst other issues raised in these petitions." 2. Thereafter on 22nd January 2016, while hearing the petitions, when the Court was told that the relevant files of the case were not traceable, the following order was passed: "1. The Court is today informed by Mr D.R. Meena, Special Commissioner Trade & Tax Department who is present in court that the files of the present case are not traceable. He will file an affidavit by the next date explaining the circumstances under which the files of this case which is sub judice could have gone missing. The Special Commissioner shall remain present on the next date. In the meanwhile every effort will be made to trace the files. 2. List on 3rd February, 2016." 3. Pursuant to the order dated 22nd January 2016, an additional affidavit has been filed by Mr. P.R. Meena, Special Commissioner (Special Zone), DT&T, GNCTD. He states that efforts were made to trace "the other related file in this case" and that "despite best efforts the said file could not be traced, alt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion whether such a specific authorisation in Form DVAT 50 existed at the time the sealing action under Section 60, and the preceding survey action under Section 59 of the DVAT Act was undertaken by the Joint Commissioner (Special Zone). In any event it does not answer the question whether a conscious decision was taken by the Commissioner undertake a survey to inspect the records of the Petitioner under Section 59 of the DVAT Act and further whether a conscious decision was thereafter taken by the Commissioner to proceed to seal the three premises of the Petitioner under Section 60 of the DVAT Act. This can be known only if there are notings on the relevant file. As it transpires, the relevant file itself is unable to be traced. 6. In response to a pointed question posed by the Court, the two officers who present in Court viz., Mr. P.R. Meena, Special Commissioner (Special Zone) and Mr. Manish Verma, Assistant Commissioner (Special Zone), state that apart from the file produced today before the Court, there is no other file concerning this case. 7. The Court is at a loss to understand how the files in respect of the present case which is sub judice, could go missing. Despite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed by the Value Added Tax Officer (VATO) at 1.35 am on dated 16th March 2013 reveals that the sealing the three premises of the Petitioner was only on account of the failure to produce the records as demanded by the notice dated 15th March 2013 issued under Section 59 of the DVAT Act. This certainly was not in accordance with the requirements of Section 60 of the DVAT Act. 12. Recently this Court had in Shree Ashtvinayak Gems & Stone Pvt. Ltd. v. Commissioner, Trade & Taxes, Delhi (order dated 27th January 2016 in W.P.(C) No. 714/2016) referred to the basic jurisdictional requirement for exercising the powers under Section 60 of the DVAT Act. The relevant portion of the said order reads as under: "5. Section 60 of the Act sets out the jurisdictional requirement for invocation of the power under Section 60(2)(f). It mandates that the Commissioner must have reasonable grounds to believe that "any person or dealer is attempting to avoid or evade tax or is concealing his tax liability in any manner". This satisfaction of the Commissioner has to be based on materials that are available on record. It ought not to be mechanically exercised, using a cyclostyled form, as has been do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Commissioner, as mandatorily required by Section 60 (1) of the DVAT Act, that there was any deliberate attempt by the Petitioner to avoid or evade tax or to conceal its tax liability in any manner. 16. Turning to the de-sealing order dated 18th March 2013 passed by the VATO, the original of which is in the file, the Court notes that it simply totals up the turnover figures for 2011-12 and 2012-13, deducts 25% therefrom in terms of Rule 3 (2) of the DVAT Rules 2005 and arrives at a figure of Rs. 124.11 crores towards tax and approximately Rs. 31.02 crores as penalty. It then adverts to the assessment order for 2008-09 and the challenge thereto by the Petitioner in the Supreme Court and this Court (which is pending as of date) and in terms of the rectified assessment and penalty orders the demand created worked out to Rs. 614.60 crores. Then it seeks to create a demand "on the basis of same proportions" for 20009-10 to 21012-13 and arrives at a figure of approximately Rs. 2190.44 crores! It is on this basis that the VATO has ordered that as a condition for de-sealing the Petitioners three premises, it should deposit Rs. 600 crores. This figure is therefore based entirely on guess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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