COMMISSIONER OF TRADE AND TAXES AND ORS. versus MIS AHLUWALIA CONTRACTS (INDIA) LTD.

Citation: [2017] 10 S.C.R. 50 · Decided: 04-10-2017 · Supreme Court of India · Bench: RANJAN GOGOI · Disposal: Appeal(s) allowed

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Judgment (excerpt)

[2017] 10 S.C.R. 50 
A 
COMMISSIONER OF TRADE AND TAXES AND ORS. 
B 
v. 
MIS AHLUWALIA CONTRACTS (INDIA) LTD. 
(Civil Appeal Nos. 15605-15606 of2017) 
OCTOBER 4, 2017 
[RANJAN GOGOi AND NAVIN SINHA, JJ.] 
Delhi Value Added Tax Act. 2004: Section 107 - Delhi Tax 
Compliance Achievement Scheme, 2013 - Clause 8 - Power and 
C jurisdiction of tlze Designated Authority to issue notice under - On 
facts, issuance of notice under clause 8 by Additional Commissioner 
to assessee - In reply no objection raised by assessee as regards 
the jurisdiction of the Additional Commissioner - However, writ 
petition by assessee challenging the jurisdiction of the Additional 
Commissioner to issue show cause notice and that the notice was 
D 
time barred - Writ petitions allowed - On appeal, held: Power to 
issue the notice under clause 8 is vested with the Commissioner and 
not in the Designated Authority - Government order dated J(Jh April, 
2014 cannot be construed to be an exercise of delegation of powers 
vested in the Commissioner under Clause 8 to Designated 
E Authority - Thus, the Additional Commissioner was not competent 
to issue notice - HowePer; the conduct of the assessee in raising the 
issue in writ petitions and not earlier was not bonafide, thus, cannot 
be allowed to take adJJantage of its own wrong - Higlz Court should 
have issued directions permitting initiation of fresh proceedings, if 
the Revenue was so inclined - High Court having failed to do so, 
F 
the error is corrected - Issuance of directions to enable the RePenue 
to issue a fresh notice to assessee under clause 8, if it so desires. 
Allowing the appeals, the Court 
HELD: 1.1 What category of officers would come within 
the expression "designated authority" is contemplated by the 
G definition contained in clause 2 ( c) of the Delhi Tax. Compliance 
Achievement Scheme, 2013. An Officer not below the rank of 
Joint Commissioner as may be n9tified by the Commissioner 
would be a designated authority under the Scheme. Clause 4 of 
the Scheme requires a declaration of the tax due to be made to 
H the designated authority and, thereafter, following the procedure 
50 
COMMISSIONER OF TRADE AND TAXES AND ORS. v. MIS 
51 
AHLUWALIA CONTRACTS (INDIA) LTD. 
prescribed by the various sub-clauses of clause 4, the Designated A 
Authority is empowered to issue the acknowledgment of 
discharge of dues under clause 4 (7) of the Scheme. [Paras 12, 
13] [60-A-C] 
1.2 Under clause 8 of the said scheme, the Commissioner 
is vested with the power, to be exercised for reasons recorded in B 
writing, to issue notice to the assessee requiring him to show 
cause as to why he should not pay the tax/ dues unpaid or short 
paid as per the provisions of the scheme. The power to issue the 
notice under clause 8 is undoubtedly vested with the 
Commissioner and not in the Designated Authority. What is c 
vested in the Designated Authority is the power under clause 4 
of the Scheme which is the power to hear and decide applications 
and issue acknowledgments of discharge on due satisfaction. The 
said power to hear and decide applications, by no means, would 
include the power to reopen a decided matter which is what clause 
8 specifically contemplates. The Government order dated 301h 
D 
April, 2014 relied upon by the Revenue as a delegation of the 
power under clause 8, on a plain reading thereof, is only an 
empowerment of a particular Additional Commissioner of a 
particular Zone (Zone may have several Additional 
Commissioners) to hear and decide applications filed under the 
Scheme. The said G.O dated 30.04.2014 cannot be construed to 
E 
be an exercise of delegation of powers vested in the 
Commissioner under Clause 8 to Designated Authority. The plain 
language contained in the said G.O is capable of sustaining the 
said conclusion. Thus, the Additional Commissioner who had 
issued the show cause notice under clause 8 in the instant case 
F 
was not competent to do so and on that basis the conclusion of 
the High Court on the said question is affirmed. [Para 14] [60-C-
G] 
1.3 The declarations in the instant case were issued to the 
assessee on 18.02.2014 and 28.02.2014 respectively. The show a 
cause notice under Clause 8 was issued on 16.01.2015. The reply 
was submitted by the respondent on 27.01.2015. The adjudication 
was completed by the Order dated 11.02.2015 against which the 
respondent-Assessee filed a writ petition before the High Court 
on 4.03.2015. In the reply fil

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