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TMI Blog2018 (9) TMI 887X X X X Extracts X X X X X X X X Extracts X X X X ..... or the petitioner sought time to go through the order and make submissions. 4. Today, when the case is taken up for hearing, the learned counsel for the petitioner fairly submitted that the order passed by this Court in M/s.Empress Audio is squarely applicable to the case of the petitioner herein and therefore, the challenge to the VAT Audit has to necessarily fail. At this juncture, it will be useful to refer to the order passed in M/s.Empress Audio and the reasons as to why the Court rejected the contention raised by the petitioner therein, which is identical to that of the contention raised by the petitioner before this Court. The relevant paragraphs of the said decision are as follows:- "8. The prayer sought for by the petitioner is only to quash the VAT Audit report and the consequential notice issued, calling upon the petitioner to produce records on a particular date. The challenge to the VAT Audit is on the ground that it is without jurisdiction, as the VAT Audit has been authorised by the Joint Commissioner and not the Commissioner. 9. The learned counsel for the petitioner referred to the sworn statement of the proprietrix of the petitioner, Tmt.Manisha, recorded by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a delegate of the Government. Further, argument being, a delegate cannot subdelegate in the absence of any such specific statutory power. 13. In Jeevan Buy N.Save (supra), the petitioner dealer contended that VAT Audit was conducted based on authorisation of the Joint Commissioner by placing reliance on the statement recorded from the said dealer, which mentioned that the VAT Audit is pursuant to authorisation by the Joint Commissioner. Similar arguments as advanced in the instant case were put forth in the said case and the Court, after examining the contentions which were advanced, pointed out that though it has been stated that along with the order of authorisation, there is an annexure appended, but the same was not placed on record by the respondent before the Court and therefore, the names of entities, supposedly, identified for conduct of VAT Audit are not known. Therefore, the Court observed that it is quite possible that the petitioner's case was not even picked up for conduct of audit. Further, the Court pointed out that on a reading of the proceedings of the Commissioner in the said case would show that the Commissioner appears to have delegated the power to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent transfer has increased more than 20% in 2013-14 over previous year. (iv) Dealers who made import/interstate purchase/transfer of taxable goods in 2013-14 and whose output tax < 90% of VAT payable on value of such inward goods. (v) Dealers who effected total purchase of goods from R.C. cancelled dears and claimed ITC of more than Rs. 10,000/- in 2013-14. (vi) Dealers who had paid average net VAT of Rs. 50,000/- and above every month in 2013-14 and such payment of tax remained within the range of + or - 5% of the average for atleast 9 months. 17. The Commissioner further directed that the procedure initiated in the VAT Audit manual shall be strictly followed and ordinarily all audit shall be completed within 15 days of commencement. The VAT Audit proposals were directed to be sent to territorial not later than 30 days from the date of commencement of audit. The Officers were warned that any violation of the time limit shall be dealt with sternly. Further, the Commissioner directed that the Joint Commissioner of Enforcement Wing shall authorise officers for such audit not below the rank of Deputy Commercial Tax Officer and officers shall comply with the provisions of the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment. It is not for the dealer to dictate terms as to how the Commercial Tax Department should organise its business. The directives issued to the Joint Commissioner to take forward the direction to conduct audit is an administrative decision by the Commissioner and being the Head of Department, it is well within his jurisdiction to issue such direction for effective and efficient administration of his department. Thus, the petitioner by placing reliance on the expression "authorised" used in the statement cannot discredit the entire proceedings alleging the same to be without jurisdiction. The Court being fully satisfied that VAT Audit has been authorised by the Commissioner in accordance with Section 64(4) of the Act, is not inclined to accept the case of the petitioner. 20. At this juncture, it would be relevant to take note of the submissions made by Mr.N.Inbarajan. Section 48 of the Act, gives power to the Government to appoint officers of the Commercial Taxes Department for the purpose of performing the functions conferred on him by under the Act. Thus, when a power is delegated by the Government to a particular officer by designation, such officer alone shall exercise the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ression "order", and does not use the expression "authorise". Thus, what is required under Section 64(4) is an order of the Commissioner and if there is an order to the said effect, then authorisation of lower level officers, by officers subordinate to the Commissioner, cannot be termed as ordering an audit, but it is a proceedings by which the order passed by the Commissioner, is implemented or carried forward. 22. As mentioned above, the decision in the case of Jeevan Buy N.Save (supra), is clearly distinguishable on facts. Sofar as the decision in the case of M/s.Arkema Peroxides India Pvt., Ltd., (supra), is also distinguishable on facts, because the department did not produce any document to dislodge the claim made by the petitioner. Similarly the decision in the case of M/s.Cabco Paradise Pvt Ltd., (supra), was rendered following decision in M/s.Arkema Peroxides India Pvt., Ltd.,. In the case of MD Oversees, Ltd.,(supra) this Court followed the decision in the case of Jeevan Buy N.Save (supra) as the respondent Department did not place any record before the Court to show that it is the Commissioner who had authorised the VAT Audit. Thus, all decisions relied on by the learn ..... X X X X Extracts X X X X X X X X Extracts X X X X
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