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1. These are four writ petitions by the dealers registered under the Delhi Value Added Tax Act, 2004 ('DVAT Act') raising similar questions concerning the exercise, by the officers under the DVAT Act, of the powers of survey, search, seizure and assessment. They are accordingly being disposed of by this common judgment.

W.P. (C) 8913 of 2014

2. In this writ petition filed by Capri Bathaid Private Limited (CBPL), the facts are that a survey was undertaken in the premises of CBPL by the Department of Trade & Taxes ('DT&T') on 4th September 2014. According to the DT&T a shortage of stock of the value of Rs. 6,79,463 and excess of cash in the sum of Rs. 247 was detected. On 22nd July 2014 CBPL filed its return for the first quarter of 2014 declaring local sales turnover of Rs. 86,66,077. Against the gross output tax liability of Rs. 4,44,728, CBPL claimed input tax credit ('ITC') of Rs. 5,11,175. CBPL deposited a sum of Rs. 74,500. According to CBPL, the claim of ITC was found matching with the output tax liability declared by the selling dealers as per the verification report in Form 2A and 2B available on the website of the DT&T. On 27th September/1st October 2014 the Assistant Value Added Tax Officer, Enforcement-I (AVATO Enf-I) issued default notices of assessment of tax, interest and penalty under Sections 32 and 33 of the DVAT Act. This was printed in pre-printed format which stated that "the dealer has not furnished returns/furnished incomplete returns or incorrect returns/furnished a return that does not comply with the requirements of Delhi Value Added Tax Act, 2004/any other person." None of the above alternative grounds were checked in the order. It was inter alia stated that the dealer had wrongly claimed ITC of Rs. 5,16,028 with regard to some purchase from "the non- functional dealer" during 2013-14 which was being disallowed under Section 9 (2) (g) of the DVAT Act. The said order for default assessment of tax and interest for the first quarter of 2014, pegged the taxable turnover at Rs. 90,86,880 and computed the tax at Rs. 5,50,013 and interest at Rs. 5,199. By a separate order of the same date, penalty of Rs. 5,50,013 was levied under Section 86 (10) of DVAT Act.

21. Under Section 70 of DVAT Act, the CVAT shall have the power to notify and publish any forms. Under Section 70 (6), every notification issued by the CVAT shall be published in the Official Gazette and shall not have any effect prior to such publication.

22. The above delegation of CVAT's powers under Section 68 of the DVAT Act has to be read along with Rule 65 of the Delhi Value Added Tax Rules, 2005 ('DVAT Rules') which reads as under:

"65. Officers to carry and produce authorizations (1) Where the Commissioner wishes to appoint an officer or other person to exercise any of the powers in Chapter X of the Act, the grant of authority to exercise the powers shall be in Form DVAT-50 and shall be issued by the person empowered by the commissioner in this regard.

The order in Form DVAT-50

32. In the counter affidavit filed by the Respondent, it is contended that the Officer who carried out the survey, search and seizure operation on the dealers was duly authorised to do so by an order issued in Form DVAT-50. What has been enclosed is a grant of authority in Form DVAT-50 issued by the CVAT on 15th October 2014. This order has been signed by the Special Commissioner (HR). The three notes appended below the said order read as under:

"1. Authority for issuance of DVAT 50 has been granted under Rule 65 (1) of DVAT Rules, 2005 to Special Commissioner (HR) by Commissioner, Department of Trade and Taxes vide diary no. 1593 dated 25th September 2014.

Sh. Om Prakash, Asst Commissioner Sh. Rakesh Kumar, AVATO Sh. Avinash Kumar, AVATO Sh. Ramesh Kumar, VATI"

40. Unless the JC (E-I) was specifically authorized under Section 68 (2) of the DVAT Act read with Rule 65 (1) of the DVAT Rules, he could not have issued the above order in Form DVAT-50. No such authorisation has been produced before the Court. Significantly, the Form DVAT-50 issued by the Special Commissioner on 15th October 2014 does not authorize the JC (E-I) to carry out any of the functions in respect of search and seizure. Consequently, the JC in turn could not have issued any form DVAT-50 authorizing the AC/AVATO/VATI to carry out search and seizure operations. In none of these cases has the DT&T been able to produce the proper order authorizing the AC/AVATO/ VATI to carry out survey, search and seizure operations.