Delhi High Court
Kumagai Skanska Hcc Itochu Group vs The Commissioner Of Value Added Tax & Anr on 26 April, 2016
Author: S. Muralidhar
Bench: S. Muralidhar, Vibhu Bakhru
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
10
+ W.P.(C) 974/2010
KUMAGAI SKANSKA HCC ITOCHU GROUP ..... Petitioner
Through: Mr. Rajesh Jain with Mr. Raj K. Batra
and Mr. Virag Tiwari, Advocates.
versus
THE COMMISSIONER OF VALUE ADDED TAX
& ANR ..... Respondents
Through: Mr. Satyakam, Additional Standing
Counsel, GNCTD.
CORAM:
JUSTICE S. MURALIDHAR
JUSTICE VIBHU BAKHRU
ORDER
% 26.04.2016
Dr. S. Muralidhar, J.:
Background facts
1. The Petitioner, Kumagai Skanska HCC Itochu Group, is a joint venture registered as such under the Income Tax Act, 1961. It and was also a dealer registered under the Delhi Sales Tax on Works Contract Act, 1999 ('DSTWC Act‟) (now repealed with effect from 1st April 2005) within the jurisdiction of the Sales Tax Officer (STO), Ward-72.
2. For the Assessment Year („AY‟) 2003-04, the assessment was completed by the Assessing Authority of Ward - 72 by an order dated 24th February 2005 and a refund of Rs. 1,78,58,291 was created. The Petitioner stated that at the time of assessment, all the books of accounts were duly produced along with copies of the Joint Venture Agreement, Contract Agreement, Audited Balance Sheets and details of TDS certificate W.P. (C) 974/2010 Page 1 of 19 covering the amount of tax deducted and deposited by Delhi Metro Rail Corporation („DMRC‟).
3. On the basis of the above order, the Petitioner filed an application for refund on 2nd March 2005 in form ST-21 in accordance with Rule 29 of the Delhi Sales Tax Rules, 1975 („DST Rules‟) read with Section 30 (1) of the Delhi Sales Tax Act, 1975 („DST Act‟) as was made applicable to the DSTWC Act.
4. The Petitioner states that it kept following up on its refund application through several letters addressed to the Assessing Authority between 24th June 2005 and 29th May 2007. It also sent reminders to the Commissioner. It is stated that on 12th January 2007, the Inspector of the Sales Tax Department verified the TDS challans and also submitted his report.
5. However, the Assessing Authority issued a notice for re-assessment in form ST-15 (WC) under Section 24 of the DST Act on 5th July 2007. The said notice stated that deductions had been claimed wrongly by the Petitioner and hence the turnover escaped assessment to tax under Rule 5 of the Delhi Sales Tax Act on Works Contract Rules, 1999 („DSTWC Rules‟). It is stated that for some reason the said notice was not proceeded with and no reassessment order was passed.
Writ Petition 8526 of 2008
6. Meanwhile, aggrieved by the inaction of the Department as far as the issue of refund was concerned and instead initiating reassessment proceedings under Section 24 of the DST Act, the Petitioner filed Writ Petition (Civil) No. 8526 of 2008 in this Court.
W.P. (C) 974/2010 Page 2 of 197. It may be noticed that in the meanwhile, with effect from 1st April 2005 the DST Act stood repealed by the Delhi Value Added Tax Act, 2004 („DVAT Act‟).
8. In the writ petition, with the Respondent not filing any counter-affidavit, this Court on 15th November 2008 directed the Respondent to deposit the entire sum of Rs. 1,78,58,291 in this Court and further ordered it to be kept by the Registrar in a fixed deposit. This order was complied with.
9. By an order dated 25th November 2009, Writ Petition (Civil) No. 8526 of 2008 was disposed of by this Court. In the said order, the Court inter alia noted that the Respondent did not dispute that the reassessment order had not been passed till that date. It was contended by the Department that the limitation period would be six years from the date of the final order of assessment in question and not four years as was contended by the Petitioner. The Court after analysing Section 24 of the DST Act noted that the extended limitation period of six years for reopening the assessment would apply only where the dealer has "concealed, omitted or failed to disclose fully the particulars of such turnover." After going through reasons recorded on 14th March 2007 for reopening of the assessment, the Court concluded that the reopening was not done on the basis that "there was any concealment or omission or failure on the part of the Assessee to disclose fully the particulars of such turnover." It was noticed that "the reasons themselves demonstrate that the entire turnover as disclosed by the Petitioner is taken into account and the reasons given is that claims of deduction made by the Petitioner was not permissible under Rule 5 of the Works Contracts Rules, 1999. Thus it is not the case of the Petitioner (sic Respondent) that the Petitioner had not disclosed full particulars. In these W.P. (C) 974/2010 Page 3 of 19 circumstances, the limitation has prescribed under Section 24 (1) (b), i.e., four years from the date of final order of assessment would apply."
10. The Court further held that since the assessment itself has become time barred it would not be permissible for the Assessing Officer („AO‟) to now proceed on the basis of the notice dated 5th July 2007 and pass reassessment orders. It was, therefore, not necessary to examine the other issues that were raised in the writ petition. The sum of Rs. 1,78,58,291 which had become refundable as a result of the original assessment and which had already been deposited by the Respondent in this Court was asked to be released to the Petitioner along with interest accrued thereon. The Petitioner was directed to make a claim of interest for the past period with the Sales Tax Authorities.
11. With no appeal being filed against the above order by the Respondent, the above order has become final. Pursuant to the above order, the said sum of Rs. 1,78,58,291 together with interest accrued thereon was refunded to the Petitioner by the Respondent.
Revisional power under the DVAT Act
12. Section 74A of the DVAT Act provides for powers of revision of the Commissioner. Section 74A (1) of DVAT Act states that the Commissioner may, of his own motion or upon information received by him, call for the record of any order or assessment passed under this Act by any officer or person subordinate to him and examine whether (a) any turnover of sales has not been brought to tax or has been brought to tax at lower rate or has been incorrectly classified or any claims incorrectly granted or that that liability to tax is understated or (b) in any case, the W.P. (C) 974/2010 Page 4 of 19 order is erroneous, insofar as it is prejudicial to the interest of Revenue and after examination, the Commissioner may pass an order to the best of his judgment, where necessary.
13. By way of Amendment to the DVAT Act, by the Delhi Value Added Tax (Amendment) Act, 2009 notified on 6th January 2010, sub-Section 5 was inserted in Section 74A of the DVAT Act which stated that notwithstanding anything contained in any judgment, decree or order of any Court, "the provisions of this Section shall be deemed to have come into effect with effect from the 1st April 2005." In other words, the power of the Commissioner to revise the order of the subordinate officer in terms of Section 74A of DVAT Act was made effective from 1st April 2005. Section 74A itself was inserted and notified with effect from 16th November 2005. Therefore, during the period from 1st April 2005 to 16th November 2005 there was no provision under the DVAT Act which was similar to Section 46 of the DST Act which granted to the Commissioner the suo motu power of revision.
The decision in International Metro Civil Contractors
14. In International Metro Civil Contractors v. CST/VAT (2008) 16 VST 329 (Del) this Court held that Section 74A "did not resuscitate or resurrect the long-dead revisionary power conferred on the Commissioner under Section 46 of the DST Act. It had no retrospective effect." The said Special Leave Petition („SLP‟) filed by the Department against the aforesaid judgment was disposed of by the Supreme Court by its order dated 31 st March 2008 with the observation that "the larger issue regarding the applicability of the Delhi Value Added Tax Act, 2004 as also question of repeal of the Delhi Sales Tax Act and related issues discussed in the W.P. (C) 974/2010 Page 5 of 19 impugned judgment of the High Court are kept open."
15. It may be also noticed at this stage that with retrospective effect from 1st April 2005 sub-section (4) in Section 106 of the DVAT Act was introduced. Section 106 was the „repeal and savings' provision. Section 106 (4) stated that notwithstanding anything contained in the DVAT Act, for the purpose of levy, assessment, deemed assessment, reassessment, appeal, revision, review etc. which relates to any period ending before 1st April 2005 "the repealed Act, and all rules, regulations, orders, notifications, forms and notices issued thereunder and in force immediately before 1st day of April 2005 shall continue to have effect as if this Act has not been passed."
Impugned show cause notice
16. On 2nd February 2010 a show-cause notice („SCN‟) was issued to the Petitioner by the Deputy Commissioner (Special Zone) in exercise of the powers under Section 16 of the DSTWC Act read with Section 46 of the DST Act and Notification No. F. 8(28)/93-PPR/13368-384 dated 12th September 1994 delegating the power of revision read with Section 106 (2) of the DVAT Act requiring the Petitioner to appear before the said officer with the books of accounts and other relevant record and to show cause as to why the said assessment order dated 24th February 2005 be not revised under Section 16 of the DSTWC Act read with Section 46 of the DST Act.
17. Inter alia it was stated in para 5 of the said notice that "whereas it has come to the notice of the undersigned that in the assessment order for the year 2003-04 deductions have been wrongly allowed hence said order is erroneous and prejudicial to the interest of revenue."
W.P. (C) 974/2010 Page 6 of 19Earlier decision of this Court
18. In this very writ petition it was decided in the first instance by a Division Bench of this Court by its judgment dated 22 nd May 2012 that the impugned show cause notice was invalid as it was barred by limitation. In the said judgment, the Court took note of the detailed observations in the judgment dated 2nd September 2011 of the Full Bench of this Court in Writ Petition (Civil) No. 274 of 2010 (Dharam Pal Satya Pal Limited v. The Commissioner, Value Added Tax) where it was held that the Commissioner under the DVAT Act can exercise suo motu powers of revision under Section 74A of the DVAT Act in respect of assessments completed under the DST Act "provided the power is invoked and exercised during the period of limitation as stipulated under Section 74A and subject to the other conditions precedent stipulated therein." The Division Bench also took note of one of the conclusions of the Full Bench that "the order of assessment framed under the DST Act is deemed to be an order framed under the DVAT Act and on reading of Section 106 (2) and 106 (3) in a conjoint manner, it is not correct to state that once the order of assessment has been passed, the transaction is closed and therefore, the assessment/order is not revisable under Section 74A of the DVAT Act."
19. The Division Bench also took note of one other specific conclusion of the FB that the proceedings initiated under the DST Act were saved by the DVAT Act and further that the proceedings could be initiated under Section 74A of the DVAT Act "during the period of limitation as stipulated under Section 74A subject to the conditions precedent stipulated therein."
20. The Division Bench took note of Section 74A (2) (b) which stated that no order under the said provision can be passed after the expiry of four W.P. (C) 974/2010 Page 7 of 19 years from the end of the year in which the order passed by the subordinate officer has been served on the dealer. In the present case, the original order of assessment determining the refund was passed on 24th February 2005 and therefore, service of the assessment order should be taken to have been effected on the Petitioner on or before 2nd March 2005. Therefore, the revisional order could have been passed within four years of 31st March 2005, i.e., upto 31st March 2009. Since the SCN has been issued only on 2nd February 2010, it was held to be barred by limitation.
21. In response to the plea that the entire Section 46 of the DST Act which provided that the final order that may be passed in exercise of the power of revision has to be passed within five years of the date of the order sought to be revised, the Court held that Section 46 of DST Act has been replaced by Section 74A of the DVAT Act qua the power of the revision and further that it is Section 74A which should be held to apply. Accordingly, the SCN dated 2nd February 2010 was quashed as being time barred.
Review petition of the Department
22. Soon thereafter the Department filed Review Petition No. 420 of 2012 drawing the attention of the Court to Section 106 (4) of the DVAT Act which had been inserted with effect from 1st April 2005 and was not noticed by the Court in the above decision.
23. On 2nd May 2014 the Division Bench of this Court allowed the review petition after noticing Section 106 (4) of the DVAT Act and held that "It is absolutely clear that the entire provision of revision as contemplated under Section 46 of the 1975 Act including the period of limitation prescribed therein would be applicable to such revisions notwithstanding the repeal of W.P. (C) 974/2010 Page 8 of 19 the said Act by the DVAT Act, 2004." Accordingly, the order dated 22 nd May 2012 is recalled and the matter was again placed for hearing on the other grounds taken by the Petitioner.
Submissions of the Petitioner on merits of the impugned SCN
24. There are two broad submissions made by Mr. Rajesh Jain, learned counsel for the Petitioner to assail the impugned SCN dated 2 nd February 2010. The first concerns the power of jurisdiction of the officer concerned to issue the said impugned SCN. The second concerns the legality of the said notice in terms of Section 46 of the DST Act.
25. As far as the second submission is concerned, the contention of the Petitioner can be stated as under:
(a) The impugned SCN has been issued on identical grounds taken in the reassessment notice issued to the Petitioner under Section 24 of the DST Act on 5th July 2007 viz., that the deductions had been wrongly claimed by the Petitioner under Rule (5) of DSTWC Rules and therefore, the turnover has escaped assessment.
(b) The said assessment proceedings had lapsed on account of the fact that no reassessment order was passed. This Court in its judgment dated 25th November 2009 held that no further order could be passed pursuant to the said notice. The suo motu power under Section 46 of the DST Act cannot be invoked on the same ground. Reliance is placed on the decision of the Gauhati High Court in Santalal Mehendi Ratta (HUF) v.
Commissioner of Taxes 2006 (143) STC 511.
(c) In the case of International Metro Civil Contractors v. CST/VAT W.P. (C) 974/2010 Page 9 of 19 (supra) the said Petitioners were also doing the job of work contract for DMRC and they were denied refund by the Department. Instead reassessment proceedings were sought to be initiated. This was challenged before this Court in Writ Petition (Civil) No. 869 of 2004 and a judgment was passed on 20th July 2004 by this Court holding that once the assessment has become final, then it was not open to the Assessing Authority while considering the refund application, to question the correctness of assessment. The Court accordingly directed the authorities to pass appropriate orders on the refund application within a period of 15 days. Soon after, the SCN under Section 46 of the DST Act was issued to International Metro Civil Contractors. This was challenged in the Writ Petition (Civil) No. 5828 of 2007 which came to be allowed by the aforementioned judgment in International Metro Civil Contractors (supra) and the said SCN was quashed. The SLP against the said order was disposed of by the Supreme Court on 31st March 2008 observing that the Commissioner "ought not to have interfered with the assessment order under Section 46 of the Delhi Sales Tax Act, 1975, particularly when the requirements of that section do not stand complied with."
(d) Respondent No. 2, the Deputy Commissioner, had issued the impugned SCN without satisfying herself whether the requirements for issuing the SCN stand complied with. The SCN did not specify (a) which deductions have been wrongly allowed, (b) to what extent, (c) what are the relied upon documents to support the stand taken in the SCN and (d) which sub-rule of Rule 5 of DSTWC Rules has been violated etc. In other words, in the absence of any specific finding given and without adducing any document to support such finding, Respondent No. 2 cannot purport to exercise suo motu power seeking to revisit the original assessment order dated 24th February 2005.
W.P. (C) 974/2010 Page 10 of 19(e) The impugned SCN has been issued by Respondent No. 2 on the instruction of the higher authority. In other words, Respondent No. 2 has not applied her mind on her own and without satisfying herself whether the conditions to invoke the powers under Section 46 of DST Act exist. Reliance was placed on the decision of the Supreme Court in Orient Paper Mills v. Union of India 1978 (2) ELT 345 (SC) and this court in Sita Juneja & Associates v. Commissioner of Sales Tax 38 DSTC J- 60 (Del).
(f) The reasons supplied on the request by the Petitioner for invoking the powers under Section 46 of the DST Act had revealed that the original assessment order was neither stated to be erroneous nor prejudicial to the interests of the Revenue. The reasons are not sustainable in law since they failed to point out how the deductions had been wrongly allowed.
26. It is further pointed out by Mr. Rajesh Jain that for the preceding AYs 2001-02, 2002-03 as well as for the subsequent AY 2004-05 refund has been granted to the Assessee on the very same basis as claimed by the Assessee for the AY in question, i.e., AY 2003-04.
Submissions of the Respondent
27. In the counter-affidavit filed in response to the present writ petition, it is contended that the original assessment order was erroneous and was prejudicial to the interest of the Revenue since the deduction had wrongly been allowed to the Petitioner contrary to Rule 5 (1) of the DSTWC Rules. It is simply stated that "the Petitioner has not approached this Court with any arguments to the effect that he was entitled to the deductions allowed in the assessment order. All through these legal proceedings, the Petitioner W.P. (C) 974/2010 Page 11 of 19 has taken advantage of technical reasons to avoid a revision whereas huge public money is involved in the case."
28. It is further contended that on the earlier occasions when the notice dated 5th July 2007 had been quashed by the Court by its judgment dated 24th November 2009 there was no occasion for the Court to go into the merits of the case. The case was decided only on the ground of limitation. Thus, the revision power under Section 46 of the DST Act was validly invoked in the present case.
Merits of the impugned SCN
29. The above submissions on the merits of the impugned SCN dated 2nd February 2010 has been considered. As already noticed in the SCN itself, the only reason for invoking the revisional powers under Section 46 of the DST Act is contained in para 5 which simply states: "whereas it has come to the notice of the undersigned that in the assessment order for the year 2003-04 deductions have been wrongly allowed hence said order is erroneous and prejudicial to the interest of revenue." In other words, the language of Section 46 of the DST Act has been reproduced. The reasons fail to specify how the original assessment order is erroneous or prejudicial to the interests of the Revenue and in what manner deductions had been wrongly claimed and allowed to the Petitioner.
30. It is sought to be contended by Mr. Satyakam, learned Additional Standing counsel for the Respondent that the SCN does not itself have to set out all the grounds on which the revisional power has been exercised and that in any event the detailed reasons are available in the note prepared by the officer, a copy of which has been made available to the Petitioner.
W.P. (C) 974/2010 Page 12 of 19Consequently, it is submitted that the Petitioner could reply to the SCN and in the proceedings pursuant to the SCN the case of the Petitioner would be considered and an appropriate order passed exercising the revisional power under Section 46 of the DST Act.
31. It must be remembered at this stage that the grounds on which the revisional power sought to be exercised is identical to the ground on which the power under Section 24 of the DST Act to reopen the assessment was invoked by issuing the notice dated 5th July 2007. In other words it is the very same reason viz., alleged wrong claim of deductions under the DSTWC Act, that prompted the reopening of the assessment for AY 2003-
04. This attempt was negatived by the Court by its judgment dated 25 th November 2009.
32. Secondly, it must be recalled that reassessment was done at the stage where the refund order was due to be issued to the Petitioner and the Petitioner had been making repeated representations in that regard. Thirdly, in its judgment dated 25th November 2009 the Court had directed release of the refund amount to the Petitioner making it clear that no further order could be passed pursuant to the notice dated 5 th July 2007 issued under Section 24 of the DST Act.
33. While it is true that in its judgment the Court concluded that no assessment order could be passed on account of limitation, the fact remains that there had to be strong reasons even prima facie for the Deputy Commissioner to invoke revisional powers under Section 46 of the DST Act in light of the above background of the case.
W.P. (C) 974/2010 Page 13 of 1934. Keeping the above facts in mind, the Court proceeds to examine the background note and the reasons for invoking the power under Section 46 of the DST Act.
The Background note and reasons for re-opening
35. It is seen that pursuant to the judgment dated 25th November 2009 a note was drawn up by the Deputy Commissioner seeking legal advice on the aspect whether the Department should file an SLP against the said judgment "relating to refund of Rs. 1,78,58,291 for the year 2003-04."
36. After narrating the above background of the case, the note referred to the fact that learned counsel for the Department gave an opinion that "it will not be worthwhile or a suitable case to file any SLP in Supreme Court." The note then stated that "it is further submitted that under the present circumstances there is one remedy available before the Department that is revision of orders prejudicial to revenue under Section 46 of the DST Act, 1975 ....." It was noted that "the instant case had been reopened vide notice dt. 5/07/07 under Section 24 of the Act for reassessment proceedings. The case could not be concluded because of Writ Petition No. 8526/2008." This is factually erroneous since it was pointed out by the Petitioner there was no stay order passed in Writ Petition No. 8526 of 2008 and therefore, nothing prevented the Department from passing the reassessment order. Nevertheless it was noted that the power of revision under Section 46 would have to be exercised by 23 rd February 2010. The note concluded seeking advice whether an SLP should be filed or a revision of the assessment order dated 24th February 2005 under Section 46 of the DST Act be undertaken.
W.P. (C) 974/2010 Page 14 of 1937. The above note was prepared by the Deputy Commissioner (Special Zone) on 6th January 2010. The photocopy of the said note together with further endorsement thereunder had been placed on record. The above note was marked to the Joint Commissioner (Law & Justice) who recorded in his own handwriting: "revision proceedings to safeguard the interest of Revenue may be initiated immediately. The said proceedings may be completed within the limitation period." (emphasis in original)
38. The note was further marked to the Commissioner (VAT) who approved it.
39. The note reveals that it was straightway presumed that the assessment order dated 24th February 2005 was prejudicial to the Revenue since a refund had been ordered. Further, the note makes it clear that the Deputy Commissioner was seeking instructions from her superior officers to file either an SLP or undertake a revision. The Joint Commissioner (L&J) directed that it should be done immediately, and it was pursuant to the said direction that the Deputy Commissioner proceeded to issue the SCN to the Petitioner.
Acting under dictation
40. The fact remains that there was no subjective satisfaction of the Deputy Commissioner for initiation of the revisional proceedings by applying objective criteria. This is evident from the fact that nearly three weeks after the above note, on 29th January 2010 the Deputy Commissioner actually penned a note setting out the reasons for invoking Section 46 of the DST Act. This note contains the reason that the Petitioner had been allowed deductions in violation of Rule 5 of the DSTWC Rules. Thus the decision W.P. (C) 974/2010 Page 15 of 19 to invoke the revisional power under Section 46 of the DST Act was not made independently by the Deputy Commissioner. She was acting on the directions of her superior officers. Consequently, the plea of Mr. Satyakam that the reasons prepared by the Deputy Commissioner in the note dated 29th January 2010 should be read as the reasons for deciding to invoke the power of revision under Section 46 of the DST Act, which is decision appears to have been taken on 7th/9th January 2010 itself, cannot be accepted.
41. It is well settled legal position that a quasi judicial authority should discharge the statutory discretionary powers independently and not under the dictation of superior officers. In Sita Juneja & Associates v. CIT (supra) this Court noticed the judgment of the Supreme Court in Mahadayal Premchandra v. CTO, Calcutta AIR 1958 SC 667, Collector of Central Excise, Bombay v. Kores (India) Limited 1997 (89) ELT 441 (SC), State of Madhya Pradesh v. G.S. Dall and Flours Mills (1991) 187 ITR 478 (SC), Bengal Iron Corporation v. CTO 1993 (66) ELT 13 (SC) to conclude that where the Assessing Officer acts on the basis of the instructions of the superior authority the entire proceedings would stand vitiated.
42. Reference was made by this Court in Sita Juneja & Associates v. CIT (supra) to the observations in Orient Paper Mills v. Union of India (supra) where the Supreme Court held that the assessing authorities as well as the appellate authorities are called upon to decide disputes "independently and impartially." They cannot be said to act independently if their judgment is controlled by the directions given by the others. "Then it is a misnomer to call their orders as their judgments, they would W.P. (C) 974/2010 Page 16 of 19 essentially be the judgments of the authority that gave the directions and which authority had given those judgments without hearing the aggrieved party."
43. It is evident in the instant case that in exercise of the power under Section 46 of the DST Act, the Deputy Commissioner did not bear in mind the previous history of the case where the Court had quashed the notice dated 5th July 2007 which sought to reopen the assessment for AY 2003-04 on the same ground viz., that the deductions had wrongly been allowed to the Petitioner. The Court is, therefore, satisfied that in the present case the invoking of the revisional power by the Deputy Commissioner under Section 46 of the DST Act was unjustified and unwarranted. The impugned SCN dated 2nd February 2010 requires to be quashed on this ground alone.
Power and jurisdiction of the officer issuing the SCN
44. The other major point urged in the writ petition concerns the authority of the jurisdiction of the Deputy Commissioner to issue the impugned SCN.
45. In this regard the Court has been shown an order dated 20 th August 2008 issued by the Commissioner (VAT), delegating her powers to Joint Commissioners/Deputy Commissioners appointed under Section 66 of the DVAT Act. This includes the power of revision under Section 74A in respect of the orders passed by VATOs/AVATOs working under their respective jurisdictions.
46. It is pointed out by an order dated 12th September 1994 that the W.P. (C) 974/2010 Page 17 of 19 Commissioner had delegated its revisional powers under Section 46 of the DST Act to the Assistant Commissioner where the order sought to be revised was passed by an assessing authority below the rank of Assistant Commissioner. The delegation of the power was made to the Deputy Commissioner where the order to be revised was passed by the Assistant Commissioner in the capacity of an Assessing Authority. After the enactment of the DVAT Act, there has been re-designation of the authorities. A sample order dated 22nd September 2006 has been placed on record. The Assistant Commissioner who was earlier exercising powers as such under the DST Act has been re-designated as Deputy Commissioner.
47. Therefore, on a combined reading of order dated 12 th September 1994 issued by the Commissioner under Section 10 of the DST Act read with order dated 20th August 2008 issued under Section 68 of the DVAT Act, 2004 and further read with Rule 48 of the DVAT Rules, 2005 and in light of the order dated 22nd September 2006 issued by the Commissioner, the Court is satisfied that the Deputy Commissioner in the present case had the necessary power to issue the impugned SCN.
48. It was sought to be urged by Mr Jain, learned counsel for the Petitioner, that the case of the Petitioner was originally assessed by the Assessing Officer Ward 72. By the time the revisional jurisdiction came to be exercised, his case had been transferred to the jurisdiction of the Special Zone. It was urged that no specific order transferring the case to the Special Zone had been produced and that in any event no such order could have been passed without prior intimation to the Petitioner.
49. The Court finds that this point has not been raised in this writ petition.
W.P. (C) 974/2010 Page 18 of 19There was, therefore, no opportunity to the Respondent to reply to such a plea. Consequently, this Court cannot permit the Petitioner to raise such a plea at this stage.
50. For the aforementioned reasons, this Court negatives the plea of the Petitioner that the Deputy Commissioner lacked the power and jurisdiction to issue the impugned SCN dated 2nd February 2010.
Conclusion
51. However, for the reasons already explained, that the Court is of the view that the power of revision was not validly exercised by the Deputy Commissioner in the instant case. Accordingly, the impugned SCN dated 2nd February 2010 is hereby quashed.
52. The writ petition is allowed in the above terms but, in the facts and circumstances, with no orders as to costs.
S. MURALIDHAR, J VIBHU BAKHRU, J APRIL 26, 2016 Rm W.P. (C) 974/2010 Page 19 of 19