TMI Blog2017 (8) TMI 762X X X X Extracts X X X X X X X X Extracts X X X X ..... ct the audit proceedings. Section 58 (4) states that the Commissioner shall, after considering the return, the evidence furnished with the returns, if any, the evidence acquired in the course of audit, if any, or any information otherwise available to him, either confirm the assessment under review or serve a notice of the assessment or re-assessment of the amount of tax, interest and penalty pursuant to Sections 32 and 33 of the DVAT Act. Therefore, Section 58 (4) itself contemplates the auditor carrying out an assessment or re-assessment as the case may be, in terms of Sections 32 and 33 of the DVAT Act. At the time when the impugned orders of default assessment of tax, interest, and penalty were passed by the VATO (Audit) in the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n terms of the Delhi Value Added Tax Act, 2004? 3. The present appeal by the Assessee under Section 81 of the Delhi Value Added Tax Act, 2004 ( DVAT Act ) is directed against an order dated 1st August 2014 passed by the Appellate Tribunal, Value Added Tax ( AT ) dismissing the Appellant s appeal against two separate orders, dated 9th September 2011 and 29th March 2013, I/Objection Hearing Authority ( OHA ) which upheld the default assessment of tax and interest under Section 32 of the DVAT Act for the 2nd, 3rd and 4th quarters of 2008-09 and penalty under Section 33 read with Section 86(13) of the DVAT Act for 2008-09. 4. The Appellant is engaged in the business of trading in auto parts, tyres and the lubricant oil. The Appellant s c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions are comparable. According to him what has been explained in the context of the powers of an officer entrusted with the powers of audit under the Income Tax Act would ipso facto also apply to the provisions in the DVAT Act that deal with audit. 8. The Court is unable to agree with the above submission. As far as DVAT Act is concerned, there are specific provisions that deal with audit. Section 58 of the DVAT Act reads as under: 58. Audit (1) The Commissioner may serve on any person in the prescribed manner a notice informing him that an audit of his business affairs shall be performed and where applicable, that an assessment already concluded under this Act may be reopened. Explanation .- A notice may be served ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 68 of the DVAT Act, which read as under: 66 (1) For carrying out the purposes of this Act, the Government shall appoint a person to be the Commissioner of Value Added Tax. 68. Delegation of Commissioner s powers (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 delegated a power to a Value Added Tax Authority, the Commissioner may supervise, review and rectify any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen the audit of the Appellant took place, there was an order dated 31st October 2005 issued by the Commissioner, VAT under Section 68 of the DVAT Act read with Rule 48 of the Delhi Value Added Tax Rules, 2005 ( DVAT Rules ) delegating his powers under various provisions of the DVAT Act to an officer of a particular designation. Relevant to the present case is the entry at Sl. No. 15 of the said order, which reads as under: Sl.No. Section Powers delegated Officer to whom delegated 15. 58 All powers to audit the business affairs of the dealer/any person for (a) confirming the assessment under the review or (b) serve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fic provisions concerning audit and delegation of powers by the Commissioner, VAT to the VATO for conducting the audit and making assessment thereunder. 15. Mr. Taneja then referred to the decisions in Tata Sponge Iron Ltd. v Commissioner of Sales Tax, Orissa [2012] 49 VST 33 (Ori) and ABB India Limited v. State of Odisha [2015] 77 VST 124 (Ori) wherein it was held that the officer who prepares the audit report cannot himself pass an assessment order based on such audit report. The said decisions are distinguishable in their application to the present case since the corresponding provision under the Orissa Value Added Tax, 2004 ( OVAT Act ) is Section 41 (4) which does not envisage the same officer who conducts the audit also making ..... X X X X Extracts X X X X X X X X Extracts X X X X
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