DELHI VAT - CHAPTER X - AUDIT, INVESTIGATION AND ENFORCEMENT
DELHI VAT - CHAPTER X - AUDIT, INVESTIGATION AND ENFORCEMENT
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 notwithstanding the fact that the person may already have been assessed under sections 31, 32 or 33 of this Act.
(2)A notice served under sub-section (1) of this section may require the person on whom it is served, to appear on a date and place specified therein, which may be at his business premises or at a place specified in the notice, to either attend and produce or cause to be produced the books of accounts and all evidence on which the dealer relies in support of his returns (including tax invoices, if any), or to produce such evidence as is specified in the notice.
(3)The person on whom a notice is served under sub-section (1) of this section shall provide all co-operation and reasonable assistance to the Commissioner as may be required to conduct the proceedings under this section at his business premises.
(4)The Commissioner shall, after considering the return, the evidence furnished with the returns, if any, the evidence acquired in the course of the audit, if any, or any information otherwise available to him, either -
(a) Confirm the assessment under review; or
(b) Serve a notice of the assessment or re-assessment of the amount of tax, interest and penalty if any pursuant to sections 32 and 33 of this Act.
(5)Any assessment pursuant to an audit of the person’s business affairs shall be without prejudice to prosecution for any offence under this Act.
1[58A.
Special Audit.-
(1) If, at any stage of the proceeding under this Act, the Commissioner, having regard to the nature and complexity of the business of a dealer and the interest of the revenue, is of the opinion that it is necessary so to do, he may direct the dealer by a notice in writing to get his records including books of accounts, examined and audited by an accountant or a panel of accountants or any other professional or panel of professionals nominated by the Commissioner in this behalf and to furnish a report of such examination and audit in the format that he may specify, duly signed and verified by such accountant or panel of accountants or professional or panel of professionals and setting forth such particulars as may be specified.
(2)The provision of sub-section (1) shall have effect notwithstanding that the accounts of the dealer have been audited under any other provision of this Act or any other law for the time being in force or otherwise.
(3)Every report under sub-section (1) shall be furnished by the dealer to the Commissioner within such period as may be specified by the Commissioner:
Provided that the Commissioner may, on an application made in this behalf by the dealer and for any good and sufficient reason, extend the said period by such further period or periods as he thinks fit:
Provided further that the aggregate of the period originally fixed and the period or periods so extended shall not, in any case, exceed one hundred eighty days from the date on which the direction under sub-section (1) is received by the dealer.
(4)The expenses of, and incidental to, the examination and audit of records under sub section (1) (including the remuneration of the accountant or a panel of accountants or professional or panel of professionals) shall be paid by the dealer as determined by the Commissioner and that determination shall be final and default in such payment shall be recoverable from the dealer as tax and in the manner provided for the recovery of arrears of tax under this Act.]
59. Inspection of records.-
(1) All records, books of accounts, registers and other documents, maintained by a dealer, transporter or operator of a warehouse shall, at all reasonable times, be open to inspection by the Commissioner.
(2)The Commissioner may, for the proper administration of this Act and subject to such conditions as may be prescribed, require -
(a) Any dealer; or
(b) Any other person, including a banking company, post office, a person who transports goods or holds goods in custody for delivery to, or on behalf of any dealer, who maintains or has in his possession any books of accounts, registers or documents relating to the business of a dealer, and, in the case of a person which is an organisation, any officer thereof; to -
(i) Produce before him such records, books of account, registers and other documents;
(ii) Answer such questions; and
(iii)(iii) Prepare and furnish such additional information; relating to his activities or to the activities of any other person as the Commissioner may deem necessary.
(3)The Commissioner may require a person referred to in sub-section (2) above, to -
(a) Prepare and provide any documents; and
(b) Verify the answer to any question; in the manner specified by him.
(4)The Commissioner may retain, remove, take copies or extracts, or cause copies or extracts to be made of the said records, books of account, registers and documents without fee by the person in whose custody the records, books of account, registers and documents are held.
60.Power to enter premises and seize records and goods.-
(1) All goods kept at any business premises by a dealer, transporter or operator of a warehouse shall at all reasonable times be open to inspection by the Commissioner.
(2)Where the Commissioner, upon information in his possession or otherwise has reasonable grounds to believe that any person or dealer is attempting to avoid or evade tax or is concealing his tax liability in any manner and for the purposes of administration of this Act, it is necessary so to do, the Commissioner may-
(a) Enter and search any business premises or any other place or building;
(b) Break open the lock of any door, box, locker, safe, almirah or other receptacle for exercising the powers conferred by clause (a) where the keys thereof are not readily available;
©Seize and remove any records, books of account, registers, other documents or goods;
(d)Place marks of identification on any records, books of account, registers and other documents or make or cause to be made extracts or copies thereof without charge;
(e)Make a note or any inventory of any such money or goods found as a result of such search or place marks of identification on such goods; and
(f)Seal the premises including the office, shop, godown, box, locker, safe, almirah or other receptacle.
(3)Where it is not feasible to remove any records, books of account, registers, other documents or goods, the Commissioner may serve on the owner and any person who is in immediate possession or control thereof, an order that he shall not remove or part with or otherwise deal with them except with the previous permission of the Commissioner.
(4)Where any premises have been sealed under clause (f) of sub-section (2) of this section, or an order made under sub-section (3) of this section, the Commissioner may, on an application made by the owner or the person in occupation or in charge of such shop, godown, box, locker, safe, almirah or other receptacle, permit the de-sealing or release thereof, as the case may be, on such terms and conditions including furnishing of security for such sum in such form and manners as may be directed.
(5)The Commissioner may requisition the services of any police officer or any public servant, or of both, to assist him for all or any of the purposes specified in sub-section (2)of this section.
(6)Save as otherwise provided in this section, every search or seizure made under this section shall as far as possible be carried out in accordance with the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) relating to searches or seizures made under that Code.
Explanation.- The powers under this section may also be exercised in respect of a dealer or a third party for the purposes of undertaking an audit or to assist in recovery.
61.Power to stop, search and detain goods vehicles.-
(1) To enable proper administration of this Act, the Commissioner may, at any check-post or barrier or at any other place, require the 2[owner,] driver or person in charge of a goods vehicle to stop the vehicle and keep it stationary so long as may be required to search the vehicle, examine the contents therein and inspect all records relating to the goods carried, which are in the possession of such 3[owner,] driver or person in charge.
4[(2) The owner, driver or person in charge of a goods vehicle shall carry with him such records as may be prescribed in respect of the goods carried in the goods vehicle and produce the same before any officer in charge of a check post or barrier or any other officer or any agent as may be empowered by the Commissioner.]
5[(2A)
The owner, driver or person in charge of a goods vehicle entering or leaving Delhi shall also file a declaration containing such particulars in the prescribed form obtainable from the Commissioner and in such manner as may be prescribed, before the officer in charge of a check post or barrier or before any other officer or agent empowered as aforesaid:
Provided that where the owner, driver or person in charge of a goods vehicle, after filing a declaration at the time of entering Delhi that the goods are meant to be carried to a place outside Delhi, fails, without reasonable cause, to carry such goods outside Delhi within the prescribed period, he shall, in addition to the payment of tax, if any, be liable to a penalty not exceeding two and a half time the tax that would have been payable had the goods been sold inside Delhi or one thousand rupees, whichever is more.]
(3)The 6[owner,] driver or person in charge of the goods vehicle shall, if required, inform the Commissioner of -
(a) His name and address;
(b) The name and address of the owner of the vehicle;
©The name and address of the consignor of the goods;
(d)The name and address of the consignee of the goods; and
(e)The name and address of the transporter.
(4)If, on an examination of the contents of a goods vehicle or the inspection of documents relating to the goods carried, the Commissioner has reason to believe that the owner 7[or driver] or person in charge of such goods vehicle is not carrying the documents as required by sub-section (2) of this section or is not carrying proper and genuine documents or is attempting to evade payment of tax due under this Act, he may, for reasons to be recorded in writing, do any one or more of the following, namely:-
(a) Refuse to allow the goods or the goods vehicle to enter 8[or leave] Delhi;
(b) Seize the goods and any documents relating to the goods; and
©Seize the goods vehicle and any documents relating to the goods vehicle.
(5)Where the owner 9[or driver] or the person in charge of the goods vehicle -
(a) Requests time to adduce evidence of payment of tax in respect of the goods to be detained or impounded; and
(b) Furnishes security to the satisfaction of the Commissioner in such form and in such manner as may be prescribed for the prescribed amount; the goods vehicle, the goods and the documents so seized may be released.
10[Provided that where the owner or his agent, driver or person in charge of the goods vehicle exercises the option of paying by way of penalty, a sum equal to three and a half times the tax, which in the opinion of the Commissioner, would be leviable on such goods, if such goods were sold in Delhi, the Commissioner instead of detaining or impounding the goods or the goods vehicle or the documents relating to the goods and goods vehicle shall release the same.]
(6)The Commissioner may permit the owner 11[,driver] or person in charge of goods vehicle to remove any goods or goods vehicle seized under sub-section (4) subject to an undertaking -
(a) (a) That the goods and goods vehicle shall be kept in the office, godown or other place within Delhi, belonging to the owner of the goods vehicle and in the custody of such owner; and
(b) That the goods shall not be delivered to the consignor, consignee or any other person without the approval in writing of the Commissioner,
and for this purpose the person in charge of the goods vehicle shall furnish an authorization from the owner of the goods vehicle authorizing him to give such undertaking on his behalf.
(7)Save as otherwise provided in this section, every search or seizure made under this section shall as far as possible be carried out in accordance with the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) relating to searches or seizures made under that Code.
(8)Nothing contained in this section shall apply to the rolling stock as defined in the Railway Act 1989 (24 of 1989).
62.Custody and release of records.-
(1) Where the Commissioner seizes any books of accounts or other documents, he shall give the dealer or the person present on his behalf, as the case may be, a receipt for the same and obtain acknowledgement of the receipt so given to him.
Provided that if the dealer or person from whose custody the books of accounts or other documents are seized refuses to give an acknowledgement, the Commissioner may leave the receipt at the premises and record this fact.
(2)The Commissioner shall keep in his custody the books of accounts, registers, other documents seized under section 60 of this Act for a period not exceeding one year, and thereafter shall return the same to the dealer or person from whose custody or power they were seized:
Provided that the Commissioner may, before returning the books of accounts, registers and other documents, require the dealer or the person, as the case may be, to give a written undertaking that the books of accounts, registers and other documents shall be presented whenever required by the Commissioner for any proceedings under this Act:
Provided further that the Commissioner shall, when requested, allow the person whose books of accounts, registers and documents have been seized, reasonable access to the books of accounts, registers and documents for the purpose of inspection and shall allow the person the opportunity to make copies thereof at the person’s own expense.
Provided also that the period of custody of the books of accounts, registers and other documents seized under section 60 of this Act may be extended beyond one year if any proceedings under this Act are pending or for reasons to be recorded by the Commissioner in writing.
63.Custody, return and disposal of goods, goods vehicle and security.-
(1) Where the Commissioner seizes any goods or goods vehicle, he shall give the dealer, person in charge of the goods vehicle or a person present on his behalf, as the case may be, a receipt for the same and obtain acknowledgement of the receipt so given to him:
Provided that if the person from whose custody the goods or goods vehicle are seized refuses to give an acknowledgement, the Commissioner may leave the receipt in his presence and record this fact.
(2)The Commissioner -
(a) Shall keep any goods or goods vehicle seized under section 61 in his custody;
(b) May retain them for such time as he considers reasonable; and
©Subject to sub-section (3) of this section, shall return the goods or goods vehicle to the dealer or other person from whose custody or power they were seized.
(3)Where the Commissioner -
(a) Has seized any goods;
(b) Has seized a goods vehicle; or
©Holds any goods as security for the performance of an obligation under this Act;
The Commissioner may, not sooner than one month after the service of notice on -
(i) The person from whom the goods were seized;
(ii) The person from whom the goods vehicle was seized;
(iii)The person for whom the security was given; and
(iv)Any person against whom the security is to be enforced;
As the case may be, of his intention to sell the goods, direct the auction of such goods or goods vehicle to meet any arrears of tax, interest or penalty owed under this Act.
(4)An auction of goods or a goods vehicle shall be carried out in the manner prescribed for the sale of property held by the Commissioner.
64.Detention of goods pending disclosure.-
(1)If any person on being required by the Commissioner, fails to give any information in respect of any goods in his possession or fails to permit the inspection thereof, the Commissioner may seize any goods in his custody or possession in respect of which the default is committed.
(2)The seizure shall remain in force until it is revoked or the person concerned furnishes the information required or makes proper arrangements for the inspection of the goods, whichever occurs first.
65.Obligation to provide reasonable assistance.-
Every person shall provide all co-operation and reasonable assistance to the Commissioner as may be required to conduct the Commissioner’s activities under the Act.
1 Inserted (w.e.f. 1-4-2005) by the Delhi Value Added Tax (Amendment) Act, 2005 (1 of 2005).
2 Inserted (w.e.f. 1-4-2005) by the Delhi Value Added Tax (Amendment) Act, 2005 (1 of 2005).
3 Inserted (w.e.f. 1-4-2005) by the Delhi Value Added Tax (Amendment) Act, 2005 (1 of 2005).
4 Substituted (w.e.f. 1-4-2005) by the Delhi Value Added Tax (Amendment) Act, 2005 (1 of 2005).
5 Inserted (w.e.f. 1-4-2005) by the Delhi Value Added Tax (Amendment) Act, 2005 (1 of 2005).
6 Inserted (w.e.f. 1-4-2005) by the Delhi Value Added Tax (Amendment) Act, 2005 (1 of 2005).
7 Inserted (w.e.f. 1-4-2005) by the Delhi Value Added Tax (Amendment) Act, 2005 (1 of 2005).
8 Inserted (w.e.f. 1-4-2005) by the Delhi Value Added Tax (Amendment) Act, 2005 (1 of 2005).
9 Inserted (w.e.f. 1-4-2005) by the Delhi Value Added Tax (Amendment) Act, 2005 (1 of 2005).
10 Inserted (w.e.f. 1-4-2005) by the Delhi Value Added Tax (Amendment) Act, 2005 (1 of 2005).
11 Inserted (w.e.f. 1-4-2005) by the Delhi Value Added Tax (Amendment) Act, 2005 (1 of 2005).
DELHI VAT - CHAPTER XI - VALUE ADDED TAX AUTHORITIES AND APPELLATE TRIBUNAL
66. Value Added Tax Authorities.-
(1) For carrying out the purposes of this Act, the Government shall appoint a person to be the Commissioner of Value Added Tax.
(2)To assist the Commissioner in the administration of this Act -
(a) The Government may appoint as many Additional Commissioners of Value Added Tax, Value Added Tax Officers and such other persons with such designations as the Government thinks necessary; and
(b) The Commissioner may, with the previous sanction of the Government, engage and procure the engagement of other persons to assist him in the performance of his duties;
in this Act referred to as “Value Added Tax Authorities".
(3)The Commissioner and the Value Added Tax authorities shall exercise such powers as may be conferred, and perform such duties as may be required, by or under this Act.
(4)The powers exercised by the Value Added Tax authorities for the making of assessments of tax, the computation and imposition of penalties, the computation of interest due or owed, the computation of the entitlement and the amount of any refund, the determination of specific questions under section 84, the making of general rulings under section 85, and the conduct of audit or investigations shall, for the purposes of this Act, be the administrative functions.
67. Powers and responsibilities of the Commissioner.-
(1) The Commissioner shall have responsibility for the due and proper administration of this Act and shall have jurisdiction over the whole of Delhi.
(2)Subject to sub-section (3) of this section, the Commissioner may, from time to time, issue such orders, instructions and directions to any Value Added Tax authorities as he thinks fit for the due and proper administration of this Act and all such persons engaged in the administration of this Act shall observe and follow such orders, instructions and directions of the Commissioner.
(3)No order, instruction or direction may be issued by the Commissioner to a person exercising the power to determine -
(a) A particular objection made or to be made under section 74 of this Act; or
(b) A particular question under section 84 of this Act; so as to require the person to determine the objection or answer the question of a particular person in a particular manner.
(4)Nothing in sub-section (3) shall prevent the Commissioner from issuing general orders, instructions and directions to any person who determines objections under section 74 or answers questions under section 84 of this Act about the manner of determining classes of objections or answering classes of questions.
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 decision made or action taken by that Authority.
Explanation.- The exercise of this power of supervision, review or rectification will not lead to the issue of an assessment or re-assessment after the expiry of the time referred to in section 34of this Act.
(4)Notwithstanding any law or doctrine to the contrary, the power delegated by the Commissioner to a person to determine an objection under section 74 of this Act may be exercised by that person, even though the person determining the objection is equal in rank to the person whose decision is under objection.
69.Change of an incumbent of an office.-
Whenever in respect of any proceeding under this Act the Commissioner or any Value Added Tax authority is succeeded by another person-
(a) No delegation of power made by the former incumbent shall be revoked by virtue of the succession; and
(b)The person so succeeding may continue the proceeding from the stage at which the proceeding was left by his predecessor.
70.Power of Commissioner to make notifications.-
(1) The Commissioner may notify and publish any forms which may be necessary for the reporting of information to the Value Added Tax authorities.
(2)Where the Commissioner has notified a form for a particular purpose, all persons shall be required to report the information using the form.
(3)Where in his opinion it is necessary or convenient to do so, the Commissioner may issue notifications for carrying out the purposes of this Act:
Provided that any notification shall not be inconsistent with this Act or any rules or regulations made pursuant to it.
(4)In particular and without prejudice to the generality of the foregoing power, a notification issued by the Commissioner may stipulate all or any of the matters which in the opinion of the Commissioner are necessary or convenient for the proper administration of this Act.
(5)Failure to comply with a requirement in a notification may be punishable with fine provided that the amount of the fine does not exceed five hundred rupees or such other amount as may be prescribed.
(6)Every notification issued by the Commissioner under this Act shall be published in the official Gazette, and shall not have any effect prior to such publication.
71.Persons to be public servants.-
The Commissioner, all Value Added Tax authorities and all members of the Appellate Tribunal shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code, 1860 (45 of 1860).
72.Immunity from civil suit.-
No suit shall be brought in any civil court against the Government, the Commissioner, any Value Added Tax authorities, or member of the Appellate Tribunal for anything done or intended to be done in good faith under this Act or the rules made thereunder.
73.Appellate Tribunal.-
(1)The Government shall, as soon as may be after the commencement of this Act, constitute an Appellate Tribunal consisting of one or more members, as it thinks fit, to exercise the powers and discharge the functions conferred on the Appellate Tribunal by or under this Act:
Provided that where the Appellate Tribunal consists of one member, that member shall be a person who has held a civil judicial post for at least ten years or who has been a member of the Indian Legal Service (not below Grade III) for at least three years or who has been in practice as an advocate for at least ten years, and where the Appellate Tribunal consists of more than one member, one such member shall be a person qualified as aforesaid.
(2)Where the number of members of the Appellate Tribunal is more than one, the Government shall appoint one of those members to be the Chairperson of the Appellate Tribunal.
(3)Subject to the provisions of sub-section (1) of this section, the qualifications and other conditions of service of the member or members constituting the Appellate Tribunal and the period for which such member or members shall hold office, shall be such as may be determined by the Government.
(4)Any vacancy in the membership of the Appellate Tribunal shall be filled up by the Government as soon as practicable.
(5)Where the number of members of the Appellate Tribunal is more than one and if the members differ in opinion on any point, the point shall be decided according to the opinion of the majority, if there is a majority, but if the members are equally divided, the decision of the Chairperson of the Appellate Tribunal thereon shall be final.
(6)Subject to the previous sanction of the Government, the Appellate Tribunal shall, for the purpose of regulating its procedure and disposal of its business, make regulations consistent with the provisions of this Act and the rules made there-under.
(7)The regulations made under sub-section (6) of this section shall be published in the official Gazette.
(8)The Appellate Tribunal shall, for the purpose of discharging its functions, have all the powers which are vested in the Commissioner under section 75 of this Act and any proceeding before the Appellate Tribunal shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purposes of section 196 of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).
DELHI VAT - CHAPTER XII - OBJECTIONS, APPEALS, DISPUTES AND QUESTIONS
DELHI VAT - CHAPTER XII - OBJECTIONS, APPEALS, DISPUTES AND QUESTIONS
74. Objections.-
(1) Any person who is dis-satisfied with -
(a) An assessment made under this Act (including an assessment under section 33 of this Act); or
(b) Any other order or decision made under this Act;
May make an objection against such assessment, or order or decision, as the case may be, to the Commissioner:
Provided that no objection may be made against a non-appealable order as defined in section 79 of this Act:
Provided further that no objection against an assessment shall be entertained unless the amount of tax, interest or penalty assessed that is not in dispute has been paid 1[failing which the objection shall be deemed to have not been filed:]
Provided also that only one objection may be made by the person against any assessment, decision or order:
Provided also that in the case of an objection to an amended assessment, order, or decision, an objection may be made only to the portion amended.
(2)A person who is aggrieved by the failure of the Commissioner to reach a decision or issue any assessment or order, or undertake any other procedure under this Act, within six months after a request in writing was served by the person, may make an objection against such failure.
(3)An objection shall be in writing in the prescribed form and shall state fully and in detail the grounds upon which the objection is made.
(4)The objection shall be made -
(a) In the case of an objection made under sub-section (1) of this section, within two months of the date of service of the assessment, or order or decision, as the case may be,; or
(b) In the case of an objection made under sub-section (2) of this section, no sooner than six months and no later than eight months after the written request was served by the person:
Provided that where the Commissioner is satisfied that the person was prevented for sufficient cause from lodging the objection within the time specified, he may accept an objection within a further period of two months.
(5)The Commissioner shall conduct its proceedings by an examination of the assessment, or order or decision, as the case may be,, the objection and any other document or information as may be relevant:
Provided that where the person aggrieved, requests a hearing in person, the person shall be afforded an opportunity to be heard in person.
(6)Where a person has requested a hearing under sub-section (5) of this section and the person fails to attend the hearing at the time and place stipulated, the Commissioner shall proceed and determine the objection in the absence of the person.
(7)Within three months after the receipt of the objection, the Commissioner shall either -
(a) Accept the objection in whole or in part and take appropriate action to give effect to the acceptance (including the remission of any penalty assessed either in whole or in part); or
(b) Refuse the objection or the remainder of the objection ,as the case may be; and in either case, serve on the person objecting, a notice in writing of the decision and the reasons for it, including a statement of the evidence on which it is based:
Provided that where the Commissioner within three months of the making of the objection notifies the person in writing, he may continue to consider the objection for a further period of two months:
Provided further that the person may, in writing, request the Commissioner to delay considering the objection for a period of up to three months for the proper preparation of its position, in which case the period of the adjournment shall not be counted towards the period by which the Commissioner shall reach his decision.
(8)Where the Commissioner has not notified the person of his decision within the time specified under sub-section (7) of this section, the person may serve a written notice requiring him to make a decision within fifteen days.
(9)If the decision has not been made by the end of the period of fifteen days after being given the notice referred to in sub-section (8) of this section, then, at the end of that period, the Commissioner shall be deemed to have allowed the objection.
(10)Where on the date of commencement of this Act a dispute under the Delhi Sales Tax Act, 1975 (43 of 1975) has been pending before a sales tax authority referred to in section 9 of the Delhi Sales Tax Act, 1975 (43 of 1975), the dispute shall be disposed of within a period of five years from the date of the commencement of this Act.
(11)Where the dispute referred to in sub-section (10) of this section has not been decided within the time required, the dispute shall be deemed to have been resolved in favour of the dealer.
75. Power of Commissioner and other authorities to take evidence on oath, etc.-
(1) The Commissioner or any person determining objections under section 74 of this Act, for the purposes of this Act, have the same powers as are vested in a court under the Code of Civil Procedure, 1908 (5 of 1908) when trying a suit, in respect of the following matters, namely: -
(a) Enforcing the attendance of any person and examining him on oath or affirmation;
(b) Compelling the production of accounts and documents; and
©Issuing commissions for the examination of witnesses;
and any proceeding under this Act before the Commissioner or person determining objections under section 74 of this Act shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 and for the purposes of section 196 of the Indian Penal Code, 1860 (45 of 1860).
(2)Subject to any rules made in this behalf, the Commissioner or any person determining objections under section 74 of this Act may impound and retain in his custody, any books of accounts or other documents produced before him in any proceedings under this Act until such proceedings are concluded:
Provided that the Commissioner or the person determining an objection under section 74 shall not impound any books of accounts or other documents without recording in writing his reasons for so doing.
76.Appeals to Appellate Tribunal.-
(1) Any person aggrieved by a decision made by the Commissioner under section 74 of this Act may appeal to the Appellate Tribunal against such decision:
Provided that no appeal may be made against a non-appealable order under section 79 of this Act.
Explanation.- The Commissioner does not appeal to the Appellate Tribunal. The Commissioner may make a further assessment of tax where he is of the opinion that further tax is owed.
(2)Subject to the provisions of section 77 of this Act, no appeal shall be entertained unless it is made within two months from the date of service of the decision appealed against.
(3)Every appeal made under this section shall be in the prescribed form, verified in the prescribed manner and shall be accompanied by such fee as may be prescribed.
(4)No appeal against an assessment shall be entertained by the Appellate Tribunal unless the appeal is accompanied by satisfactory proof of the payment of the amount in dispute and any other amount assessed as due from the person:
Provided that the Appellate Tribunal may, if it thinks fit, for reasons to be recorded in writing, entertain an appeal against such order without payment of some or all of the amount in dispute, on the appellant furnishing in the prescribed manner security for such amount as it may direct:
Provided further that no appeal shall be entertained by the Appellate Tribunal unless it is satisfied that such amount as the appellant admits to be due from him has been paid.
(5)In proceedings before the Appellate Tribunal -
(a) The person aggrieved shall be limited to disputing only those matters stated in the objection;
(b)The person aggrieved shall be limited to arguing only those grounds stated in the objection; and
©The person aggrieved may be permitted to adduce evidence not presented to the Commissioner for good and sufficient reasons.
(6)The Appellate Tribunal shall -
(a) In the case of an assessment, confirm, reduce, or annul the assessment (including any penalty and interest imposed);
(b)In the case of any other decision of the Commissioner, affirm or reject the decision; or
©Pass such other order for the determination of the issue as it thinks fit:
Provided that the Appellate Tribunal shall give reasons in writing for its decision which shall include its findings on material questions of fact and the evidence or other material on which those findings were based.
(7)The Appellate Tribunal shall use its best endeavours to make a final resolution of the matter before it and for this purpose may make a decision in substitution for the order in dispute, including the exercise or re-exercise of any discretion or power vested in the Commissioner.
(8)The Appellate Tribunal shall not set aside an assessment and remit the matter to the Commissioner for a further assessment, unless it has first -
(a) Advised the aggrieved person of the proposed order;
(b)Offered the person the opportunity to adduce such further evidence before it as might assist the Appellate Tribunal to reach a final determination.
(9)Where the Appellate Tribunal sets aside an assessment and remits the matter to the Commissioner for a further assessment, the Appellate Tribunal shall at the same time order the Commissioner to refund to the person some or all of the amount in dispute:
Provided that where no order is made, it shall be presumed that the Appellate Tribunal has ordered the refund of the amount in dispute.
(10)Where a person has failed to attend the hearing at the time and place stipulated, the Appellate Tribunal may adjourn the proceedings, strike out the appeal or proceed to make an order determining the objection in the absence of the person.
(11)Save as provided in section 81 of this Act and sub-section (12) of this section, an order passed by the Appellate Tribunal on an appeal shall be final.
(12)The Appellate Tribunal may rectify any mistake or error apparent from the record of its proceedings.
77.Extension of period of limitation in certain cases.-
(1) The Appellate Tribunal may admit an appeal under section 76 of this Act after the period of limitation laid down in that section, if the appellant satisfies the Appellate Tribunal that he had sufficient cause for not preferring the appeal within such period.
(2)In computing the period laid down under sections 76 and 81 of this Act, the provisions of sections 4 and 12 of the Limitation Act, 1963 (36 of 1963), shall, so far as may be, apply.
(3)In computing the period of limitation prescribed by or under any provision of this Act, or the rules made thereunder, other than sections 76 or 81 of this Act, any period during which any proceeding is stayed by an order or injunction of any court shall be excluded.
78.Burden of proof.-
The burden of proving any matter in issue in proceedings under section 74 of this Act, or before the Appellate Tribunal which relates to the liability to pay tax or any other amount under this Act shall lie on the person alleged to be liable to pay the amount.
Explanation.- The burden of proof in criminal prosecutions is unaffected by this section.
79.Bar on appeal or objection against certain orders.-
(1) No objection or appeal shall lie against -
(a) A decision of the Commissioner to make an assessment of tax or penalty;
(b)A notice requiring a person to furnish a return;
©2[A notice issued under section 58, section 59 and direction under section 58A of this Act;]
(d)A decision of the Commissioner to notify any matter;
(e)A notice asking a dealer to show cause why he should not be prosecuted for an offence under this Act;
(f)A decision relating to the seizure or retention of books of account, registers and other documents;
(g)A decision sanctioning a prosecution under this Act;
(h)An interim decision made in the course of any proceedings;
(i)A decision of the Commissioner touching on the internal administration of the Value Added Tax authorities; 3[or] 4[***]
5[(j)]an assessment issued by the Commissioner to give effect to an order of the Appellate Tribunal or a court.
(In this Act referred to as “non-appealable orders").
(2)Save as provided in 6[clause (j)] of sub-section (1) of this section, nothing in sub-section (1) of this section shall prevent the person from objecting to the amount or the obligation to pay any amount assessed by the Commissioner under section 74 of this Act.
80.Assessment proceedings, etc. not to be invalid on certain grounds.-
(1) No assessment, notice, summons or other proceedings made or issued or taken or purported to have been made or issued or taken in pursuance of any of the provisions of this Act or under the earlier law shall be invalid or shall be deemed to be invalid merely by reason of any mistake, defect or omission in such assessment, notice, summons or other proceedings, if such assessment, notice, summons or other proceedings are in substance and effect in conformity with or according to the intent and purposes of this Act or any earlier law.
(2)The service of any notice, order or communication shall not be called in question if the said notice, order or communication, as the case may be, has already been acted upon by the dealer or person to whom it is issued or which service has not been called in question at or in the earliest proceedings commenced, continued or finalised pursuant to such notice, order or communication.
(3)No assessment made under this Act shall be invalid merely on the ground that the action could also have been taken by any other authority under any other provisions of this Act.
81.Appeal to High Court.-
(1)An appeal shall lie to the High Court from every order passed by the Appellate Tribunal in appeal under this Act, if the High Court is satisfied that the case involves a substantial question of law.
(2)The Commissioner or the other party aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-section shall be -
(a) Filed within sixty days from the date on which the order appealed against is received by the Commissioner or the other party.
(b)In the form of a memorandum of appeal precisely stating therein the substantial question of law involved.
(3)Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(4)The appeal shall be heard only on the question so formulated, and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question.
(5)The High Court shall decide the question of law so formulated and deliver such judgment thereon containing the grounds on which such decision is founded and may award such cost as it deems fit.
(6)The High Court may determine any issue which -
(a) Has not been determined by the Appellate Tribunal;
(b) Has been wrongly determined by the Appellate Tribunal, by reason of a decision on such question of law as is referred to in sub-section (1).
(7) Where an appeal has been filed before the High Court, it shall be heard by a bench of not less than two judges of the High Court, and shall be decided in accordance with the opinion of such judges or of the majority, if any, of such judges.
(8) Where there is no such majority, the judges shall state the point of law upon which they differ and the case shall, then, be heard upon that point only by one or more of the other judges of the High Court and such point shall be decided according to the opinion of the majority of the judges who have heard the case including those who first heard it.
(9) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908), relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section.]
82.Appearance before any authority in proceedings.-
(1) Any person, who is entitled or required to attend before any authority in connection with any proceedings under this Act, may attend-
(a) By a person authorised by him in writing in this behalf, being a relative or a person regularly employed by him; or
(b)By a legal practitioner or chartered accountant 8[or cost accountant] who is not disqualified by or under sub-section (2) of this section ; or
©By a Value Added Tax practitioner who possesses the prescribed qualifications and is entered in the list, which the Commissioner shall maintain in that behalf, and who is not disqualified by or under sub-section (2) of this section.
(2)The Commissioner may, for reasons to be recorded in writing, disqualify for a period from appearing before any such authority, any legal practitioner, chartered accountant or Value Added Tax practitioner-
(a) Who has been dismissed from government service; or
(b)Who, being a legal practitioner or chartered accountant 9[or cost accountant], is found guilty of misconduct in connection with any proceedings under this Act by an authority empowered to take disciplinary action against the members of the profession to which he belongs; or
©Who, being a Value Added Tax practitioner, is found guilty of such misconduct by the Commissioner.
(3)Any person who is disqualified under this section may, within one month of the date of disqualification, appeal to the Government to have the disqualification cancelled.
(4)The decision of the Commissioner shall not take effect until one month of the making thereof or when an appeal is preferred, until the appeal is decided.
(5)The Commissioner may, at any time, suo motu or on an application made to him in this behalf, revoke any decision made against any person under sub-section (2) of this section and thereupon such person shall cease to be disqualified.
Explanation.- A decision made by the Commissioner under this section may also be the subject of an objection under section 74 of this Act.
83.Bar of suits in civil courts.-
No suit shall be brought in any civil court to set aside or modify any assessment made or any order passed under this Act or the rules made thereunder.
84.Determination of specific questions.-
(1) If any determinable question arises, otherwise than in proceedings before a court, a person may apply in the prescribed manner to the Commissioner for the determination of that question.
(2)Subject to sub-section (3) of this section, an application for the determination of a determinable question may be made in respect of a proposed transaction, a transaction that is being undertaken, or a transaction has been concluded.
(3)An application for the determination of a determinable question may not be made after -
(a) The Commissioner has commenced the audit of the person pursuant to section 58 of this Act; or
(b)The Commissioner has issued an assessment for the tax period in which the transaction that is the subject of the determinable question occurred.
Explanation.- For the purposes of this sub-section, the Commissioner shall be deemed to have commenced the audit of a person under section 58 of this Act when the Commissioner serves a notice to this effect.
(4)For the purposes of this section, the following shall be determinable questions:-
(a) Whether any person, society, club or association or any firm or any branch or department of any firm is or would be a dealer;
(b)Whether any dealer is or would be required to be registered under this Act;
©The amount of the taxable quantum of a dealer for a period;
(d)Whether a transaction is or would be a sale, or requires an adjustment to be made under section 8 of this Act arising out of a sale;
(e)Whether a transaction is or would be in the nature of works contract, or transfer of right to use any goods;
(f)Whether a sale is not liable to tax under section 7 of this Act;
(g)Whether a sale is exempt from tax under section 6 of this Act;
(h)The sale price of a transaction;
(i)The proportion of the turnover or turnover of purchases of a dealer which arises in a tax period, and the time at which an adjustment to tax or tax credit arises;
(j)Whether any transaction is or would be the import of goods;
(k)The value of any goods imported into Delhi;
(l)The rate of tax that is payable on a sale or import of goods and the classification of the goods under the Schedules;
(m)Whether a transaction is the purchase of goods, or requires an adjustment to be made under section 10 of this Act arising out of a purchase;
(n)The amount of any tax credit to which the dealer is entitled in respect of a purchase or import of goods;
(o)The amount of any tax credit in respect of any used goods purchased by a dealer;
(p)The location of any sale or purchase;
(q)The application of a composition scheme in the circumstances of the dealer; or
®The tax period of a dealer.
(5)The Commissioner shall make the determination within such period as may be prescribed.
(6)Where -
(a) The Commissioner fails to make a determination under this section within the time prescribed under sub-section (5) of this section;
(b)The person thereafter implements the transaction which is the subject of the application and in the manner described in the application; and
©The person has, in the application for the determination of the determinable question, indicated the answer to the determinable question which the person believes to be correct (in this section called the “proposed determination");
The Commissioner shall be deemed for the purposes of this Act to have made and issued to the person on the day after the expiry of the prescribed period, a determination of the determinable question in the terms of the proposed determination.
(7) The Commissioner may -
(a) Direct that the determination shall not affect the liability of any person under this Act with respect to any transaction effected prior to the determination;
(b)Limit the period for which the determination will apply;
©Limit the transactions to which the determination will apply; and
(d)Impose such other limitations or restrictions on the determination as seem appropriate.
(8)If any such question arises from any order already passed under this Act or under the Delhi Sales Tax Act, 1975 (43 of 1975) or the Delhi Sales Tax on Works Contract Act, 1999 (Delhi Act 9 of 1999) or the Delhi Tax on Entry of Motor Vehicles into Local areas Act, 1994 (Delhi Act 4 of 1995), as then in force in Delhi, no such question shall be entertained for determination under this section but such question may be raised in an objection or appeal against such order.
(9)Where -
(a) The Commissioner has issued to a person a determination in respect of a particular transaction; and
(b)The person implements the transaction based on the determination issued to him under this section and in the manner described in the application;
No assessment may be raised by the Commissioner against that person which is inconsistent with the determination and no penalty may be imposed on the person if the determination is later held incorrect.
(10)The Commissioner may, by notice served on the person, withdraw or qualify a determination issued under this section but such withdrawal or qualification shall not affect the entitlement of any person to rely on the determination with respect to any transaction or action which he has commenced or which he has completed prior to the withdrawal or qualification.
85.Ruling on general questions.-
(1) The Commissioner may, by notification in the official Gazette, publish his ruling on the answer to any question involving the interpretation of this Act or application of this Act to a class of persons or class of transactions.
(2)A ruling issued by the Commissioner under this section may be issued subject to such restrictions and conditions as the Commissioner may deem fit.
(3)The ruling shall be treated as coming into effect on the date stated in the ruling (which may be a date prior to the publication of the ruling) or, if no date is stated in the ruling, on the date of publication of the official Gazette.
(4)Where -
(a) (a) The Commissioner has published a ruling in respect of a class of persons or transactions;
(b)(b) A person implements a transaction or undertakes any action based on the ruling;
©© The ruling has, at the time of implementing the transaction or undertaking the action, not been withdrawn by the Commissioner; and
(d)(d) According to the terms of the ruling, the ruling purports to apply to the transaction or action undertaken by the person;
No assessment, which is inconsistent with the ruling, may be raised by the Commissioner against that person and no penalty may be imposed on the person if the ruling is later held incorrect.
Explanation.- A person may rely on the Commissioner’s ruling or on the determination made under section 84 of this Act.
(5) The Commissioner may, by notification published in the official Gazette, withdraw or qualify a ruling already issued under this section but such withdrawal or qualification shall not affect the entitlement of any person to rely on the ruling with respect to any transaction or action commenced or completed by him prior to such withdrawal or qualification.
1 Inserted (w.e.f. 1-4-2005) by the Delhi Value Added Tax (Amendment) Act, 2005 (1 of 2005).
2 Substituted (w.e.f. 1-4-2005) by the Delhi Value Added Tax (Amendment) Act, 2005 (1 of 2005).
3 Inserted (w.e.f. 1-4-2005) by the Delhi Value Added Tax (Amendment) Act, 2005 (1 of 2005).
4 Omitted (w.e.f. 1-4-2005) by the Delhi Value Added Tax (Amendment) Act, 2005 (1 of 2005).
5 Substituted (w.e.f. 1-4-2005) by the Delhi Value Added Tax (Amendment) Act, 2005 (1 of 2005).
6 Substituted (w.e.f. 1-4-2005) by the Delhi Value Added Tax (Amendment) Act, 2005 (1 of 2005).
7 Substituted (w.e.f. 1-4-2005) by the Delhi Value Added Tax (Amendment) Act, 2005 (1 of 2005).
8 Inserted (w.e.f. 1-4-2005) by the Delhi Value Added Tax (Amendment) Act, 2005 (1 of 2005).
9 Inserted (w.e.f. 1-4-2005) by the Delhi Value Added Tax (Amendment) Act, 2005 (1 of 2005).
DELHI VAT - CHAPTER XIII PENALTIES AND OFFENCES
DELHI VAT - CHAPTER XIII PENALTIES AND OFFENCES
86. Penalties.-
(1) In this section “tax deficiency” means the difference between the tax properly payable by the person in accordance with the provisions of this Act and the amount of tax paid by the person in respect of a tax period.
(2)The Government may, from time to time, if it deems it necessary, vary the amount of any penalty due under this section by a notification to that effect in the official Gazette:
Provided that any penalty which is increased under this section shall have effect only for offences or failures occurring after the date of such notification;
Provided further that the penalty imposed under this section can be remitted where a person is able to prove existence of a reasonable cause for the act or omission giving rise to penalty during objection proceedings under section 74 of this Act.
(3)Where two or more penalties arise under this Act in respect of the same conduct of a person, the person shall be liable to pay only the greater penalty.
(4)Where a person who is required to be registered under this Act has failed to apply for registration within one month from the day on which the requirement arose, the person shall be liable to pay, by way of penalty, an amount equal to one thousand rupees per day, from the day on which the requirement arose until the person makes an application for registration in the prescribed form, containing such particulars and information and accompanied by such fee, security and other documents as may be prescribed:
Provided that the amount of penalty payable under this sub-section shall not exceed one lakh rupees.
(5)If, a registered dealer fails to comply with the provisions of sub-section (1) of section 21of this Act, the person shall be liable to pay, by way of penalty, a sum of one hundred rupees per day of default subject to a maximum of five thousand rupees.
(6)If a registered dealer -
(a) Fails to comply with the provisions of sub-section (2) of section 22 of this Act; or
(b) Fails to surrender his certificate of registration as provided in sub-section (7) of section 22 of this Act;
The registered dealer shall be liable to pay, by way of penalty, a sum equal to one hundred rupees for every day of default subject to a maximum of five thousand rupees.
(7)If any person falsely represents that he is registered as a dealer under this Act, he shall be liable to a penalty equal to the amount of tax wrongly collected or one lakh rupees, whichever is the greater.
(8)Where a person -
(a) Has applied for registration under sub-section (4) of section 18 of this Act;
(b) Has been registered; and
either -
(i) Has failed to undertake activities which would make the person a dealer within the period specified in his application; or
(ii) Has failed to comply with any of the restrictions or conditions subject to which such registration was granted,
The person shall be liable to pay a penalty of ten thousand rupees.
(9)If a person required to furnish a return under Chapter V of this Act-
(a) Fails to furnish any return by the due date; or
(b) Fails to furnish with a return any other document that is required to be furnished with the return; or
©Being required to revise a return already furnished, fails to furnish the revised return by the due date;
The person shall be liable to pay, by way of penalty, a sum of one hundred rupees per day from the day on which the requirement arose until the failure is rectified:
Provided that the amount of penalty payable under this sub-section shall not exceed ten thousand rupees.
(10)Any person who -
(a) Furnishes a return under this Act which is false, misleading or deceptive in a material particular; or
(b) Omits from a return furnished under this Act any matter or thing without which the return is false, misleading or deceptive in a material particular;
Shall be liable to pay, by way of penalty, a sum of ten thousand rupees or the amount of the tax deficiency, whichever is the greater.
(11)Any dealer who -
(a) Has claimed tax credit under section 14 of this Act to which he is not entitled; or
(b) Has claimed a greater tax credit under section 14 than is allowed;
Shall be liable to pay, by way of penalty, an amount equal to the amount of tax credit so claimed or ten thousand rupees, whichever is the greater.
(12)Where a tax deficiency arises in relation to a person, the person shall be liable to pay, by way of penalty, a sum equal to one per cent of the tax deficiency per week or a sum equal to rupees one hundred per week, whichever is higher, for the period of default.
(13)Where a person is required under this Act to -
(a) Prepare records or accounts; or
(b)Prepare records or accounts in a prescribed manner; or
© Retain records or accounts;
and the person -
(i) Fails to prepare the required records and accounts; or
(ii) Fails to prepare records and accounts in the prescribed manner; or
(iii)Fails to retain the records and accounts for the prescribed period; the person shall be liable to pay, by way of penalty, a sum of fifty thousand rupees or twenty per cent of the tax deficiency, if any, whichever is greater.
(14)Any person who fails to comply with the requirement under sub-section (2) or sub-section (3) of section 59 of this Act shall be liable to pay, by way of penalty, a sum of fifty thousand rupees.
(15)Where a person who is required to prepare records and accounts under this Act, prepares records and accounts in a manner that is false, misleading or deceptive, the person shall be liable to pay, by way of penalty, a sum of one lakh rupees or the amount of the tax deficiency, if any, whichever is greater.
(16)Where a person -
(a) Has issued a tax invoice or retail invoice with incomplete or incorrect particulars; or
(b) Having issued a tax invoice or retail invoice, has failed to account it correctly in his books of account;
The person shall be liable to pay, by way of penalty, an amount of five thousand rupees or twenty per cent of the tax deficiency, if any, whichever is greater.
(17)Where a person who is not authorised under this Act to issue a tax invoice has issued a tax invoice for a sale, the person shall be liable to pay, by way of penalty, an amount of one lakh rupees or the tax deficiency, if any, whichever is greater.
(18)If any dealer liable to have his accounts audited under section 49 of this Act fails to furnish a true copy of such report within the prescribed time , the person shall be liable to pay, by way of penalty, a sum of ten thousand rupees.
(19)Where goods are being carried by a transporter without the documents or without proper and genuine documents or without being properly accounted for in the documents referred to in sub-section (2) of section 61 of this Act, the transporter shall be liable to a penalty equal to the amount of tax payable on such goods.
(20)Any person who -
(a) Makes a statement to the Commissioner which is false, misleading or deceptive in a material particular; or
(b) Omits from a statement made to the Commissioner any matter or thing without which the statement is false, misleading or deceptive in a material particular;
The person shall be liable to pay, by way of penalty, a sum of fifty thousand rupees, or the amount of the tax deficiency, whichever is greater.
Explanation.- The liability to pay a penalty and the amount of the penalty may be the subject of an objection under section 74 of this Act.
87. Automatic mitigation and increase of penalties -
(1) Where as a result of any proceedings the amount of tax with respect to which a penalty was levied has been wholly reduced, the penalty levied shall be cancelled and if the penalty has been paid, it shall be refunded.
(2)If -(a) A person is liable to pay a penalty under 1[***] sub-section (12) of section 86 of this Act; and
(b) The person voluntarily discloses to the Commissioner in writing the existence of the tax deficiency before the Commissioner informs the person that an audit of the person’s tax obligations is to be carried out;
The amount of the penalty otherwise due shall be reduced by eighty per cent of the penalty.
(3)If -
(a) A person is liable to pay a penalty under 2[***] sub-section (12) of section 86 of this Act; and
(b) The person voluntarily discloses to the Commissioner in writing the existence of the tax deficiency after the Commissioner informs the person that an audit of the person’s tax obligations is to be carried out;
The amount of the penalty due shall be reduced by fifty per cent of the penalty.
(4)
If -
(a) A person is liable to pay a penalty under 3[***] sub-section (12) of section 86 of this Act;
(b) The tax deficiency arose because the person treated this Act as applying to the person in a particular way; and
©The decision to adopt that treatment was made by the person relying on a determination given to the person by the Commissioner under section 84 of this Act or a ruling issued by the Commissioner under section 85 of this Act;
The amount of the penalty otherwise due shall be reduced to nil.
(5)Where -
(a) Penalty under this Act has been assessed;
(b) The penalty has not been remitted in full after objection; and
©The person is subsequently assessed to a further penalty in respect of the same or a substantially similar failure occurring on another occasion (in this section called the “subsequent offence");
The penalty otherwise due under this Act shall be increased by -
(i) In the case of the first subsequent offence, fifty per cent of the specified penalty; and
(ii) In the case of the second and any further subsequent offence, one hundred per cent of the specified penalty.
88.Relationship to assessment and impact on criminal penalties.-
(1) The penalties specified under this Act are owed notwithstanding that no assessment of tax owed under this Act has been made.
(2)Any penalty imposed under this Act shall be without prejudice to any prosecution for any offence under this Chapter.
89.Offences and criminal penalties.-
(1) Whoever -
(a) Not being a registered dealer, falsely represents that he is or was a registered dealer at the time when he sells or buys goods;
(b) Knowingly keeps false account or does not keep the account of the value of the goods bought or sold by him in contravention of section 48,; or
©Issues to any person a false invoice, bill, cash-memorandum, voucher or other document which he knows or has reason to believe to be false;
Shall, on conviction, be punished with rigorous imprisonment for a term which may extend to six months and with a fine.
(2)Whoever knowingly -
(a) Furnishes a false return;
(b) Produces before the Commissioner, false bill, cash-memorandum, voucher, declaration, certificate, tax invoice or other document for claiming deduction on tax credit; or
©Produces false accounts, registers or documents or knowingly furnishes false information;
Shall
(i)In case where the amount of tax which could have been evaded if the false return, bill, cash-memorandum, voucher, declaration, certificate, tax invoice or other document for claiming deduction on tax credit, accounts, registers or documents or false information, as the case may be, had been accepted as true exceeds fifty thousand rupees, on conviction, be punished with rigorous imprisonment for a term which may extend to six months ; and
(ii)In any other case, with rigorous imprisonment for a term which may extend to six months and with a fine.
(3)Whoever, willfully attempts, in any manner whatsoever, to evade payment of tax, penalty or interest or all of them under this Act, shall, on conviction, be punished -
(a) In any case where the amount involved exceeds fifty thousand rupees during the period of a year, with rigorous imprisonment for a term which may extend to six months and with a fine; and
(b) In any other case, with rigorous imprisonment for a term which may extend to three months and with a fine.
(4)Whoever -
(a) Carries on business as a dealer without being registered in willful contravention of sub-section (1) of section 18 of this Act;
(b)Fails without sufficient cause to furnish any information required under section 21 of this Act;
©Fails to surrender his certificate of registration as provided in sub-section (7) of section 22 of this Act;
(d)Fails without sufficient cause to furnish any returns as required under section 27 of this Act by the date or in the manner prescribed;
(e)Without reasonable cause, contravenes any of the provisions of section 40 of this Act;
(f)Without sufficient cause fails to issue invoice as required under section 50 of this Act;
(g)Fails without sufficient cause, when directed so to do under section 48 of this Act to keep any accounts or record, in accordance with the directions;
(h)Fails without sufficient cause, to comply with any requirements made of him under section 59 of this Act, or obstructs any officer making inspection or search or seizure under sections 60 and 61 of this Act;
(i)Obstructs or prevents any officer performing any function under Chapter X of this Act;
(j)Being owner in charge of a goods vehicle fails, neglects or refuses to comply with any of the requirements contained in section 61 of this Act; or
(k)Interferes with or obstructs the Commissioner or any officer exercising any other power conferred under this Act;
Shall, on conviction, be punished with imprisonment for a term which may extend to six months and with a fine.
(5)Whoever aids or abets any person in the commission of any act specified in sub-sections (1) to (3) of this section shall, on conviction, be punished with rigorous imprisonment which may extend to six months, and with a fine.
(6)Whoever commits any of the acts specified in sub-sections (1) to (5) of this section and the offence is a continuing one under any of the provisions of these sub-sections, shall, on conviction, be punished with a fine of not less than one hundred rupees per day during the period of the continuance of the offence, in addition to the punishments provided under this section.
(7)Notwithstanding anything contained in sub-sections (1) to (5) of this section, no person shall be proceeded under these sub-sections if the total amount involved is less than two hundred rupees during the period of a year.
(8)Where a dealer is accused of an offence specified in sub-sections (1), (2) or (3) or in clauses (a), (b), ©, (d), (e), (f), (g), (h) and (i) of sub-section (4), or sub-section (6) of this section the person deemed to be the manager of the business of such dealer under section 95 shall also be deemed to be guilty of such offence, unless he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission thereof.
90.Offences by companies, etc.-
(1)Where an offence under this Act or the rules has been committed by a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
(2)Notwithstanding anything contained in sub-section (1) of this section, where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation.- For the purpose of this section -
(a)"Company” means a body corporate, and includes a firm or other association of individuals; and
(b)"Director” in relation to a firm means a partner in the firm.
(3)Where an offence under this Act has been committed by a Hindu undivided family, the Karta thereof shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render the Karta liable to any punishment if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence:
Provided further that where an offence under this Act has been committed by a Hindu undivided family and it is proved that the offence has been committed with the consent or connivance of or is attributable to any neglect on the part of any adult member of the Hindu undivided family, such member shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
91.Cognizance of offences.-
(1) No court shall take cognizance of any offence under this Act or rules made thereunder except with the previous sanction of the Commissioner, and no court inferior to that of a Metropolitan Magistrate shall try any such offence.
(2)Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) all offences punishable under this Act or the rules made thereunder shall be cognizable and bailable
92.Investigation of offences.-
(1) Subject to such conditions as may be prescribed, the Commissioner may authorise either generally or in respect of a particular case or class of cases any officer or person subordinate to him to investigate all or any of the offences punishable under this Act.
(2)Every officer or person so authorised shall, in the conduct of such investigation, exercise the powers conferred by the Code of Criminal Procedure, 1973 (2 of 1974) upon an officer in charge of a police station for the investigation of a cognizable offence.
93.Compounding of offences.-
(1)The Commissioner may, before the institution of proceedings for any offence punishable under sub-section (4) of section 89 of this Act or under any rules made under this Act, accept from any person charged with such offence by way of composition of offence, a sum not exceeding fifty thousand rupees or a sum not exceeding three times the amount of tax which would thereby have been avoided, whichever is higher.
(2)On payment of such sum as may be determined by the Commissioner under sub-section (1) of this section, no further proceedings shall be taken against such person in respect of the same offence.
94. Chapter XXXVI of the Code of Criminal Procedure, 1973, not to apply to certain offences.-
Nothing in Chapter XXXVI of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply to -
(a) Any offence punishable under this Act; or
(b)Any other offence which under the provisions of that Code may be tried along with such offence; and
DELHI VAT - CHAPTER XIV MISCELLANEOUS
DELHI VAT - CHAPTER XIV MISCELLANEOUS
95. Dealer to declare the name of manager of business.-
(1) Every dealer being a Hindu undivided family or an association of persons or club or society or firm or company or any person or body who is engaged in business as the guardian or trustee or otherwise on behalf of another person, and who is liable to pay tax under this Act, shall, within the period prescribed, furnish a declaration in the manner prescribed, stating the name of the person or persons who shall be deemed to be the manager or managers of such person’s business for the purposes of this Act.
(2) The declaration furnished under sub-section (1) of this section may be revised from time to time as required.
96. Service of notice when family is disrupted or firm is dissolved.-
(1) Where a Hindu undivided family has been partitioned, notices under this Act shall be served on the person who was the last manager of the Hindu undivided family, or if such person cannot be found, then, on all adults who were members of the Hindu undivided family, immediately before the partition.
(2) Where a firm or an association of persons is dissolved, notices under this Act may be served on any person who was a partner (not being a minor) of the firm, or member of the association, as the case may be, immediately before its dissolution.
97. Service of notice in the case of discontinued business.-
Where an assessment is to be made in respect of business which has been discontinued, a notice under this Act shall be served in the case of a firm or an association of persons or any person who was a member of such firm or association at the time of its discontinuance or in the case of a company on the principal officer thereof.
98. Returns, etc. to be confidential.-
(1) All particulars contained in any statement made, return furnished or accounts or documents produced in accordance with this Act, or in any record of evidence given in the course of any proceedings under this Act, other than proceedings before a criminal court, shall, save as provided in sub-section (3) of this section, be treated as confidential, and notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872), no court shall, save as aforesaid, be entitled to require any servant of the Government to produce before it any such statement, return, account, document or record or any part thereof, or to give evidence before it in respect thereof.
(2) If, save as provided in sub-section (3) of this section, any servant of the Government discloses any of the particulars referred to in sub-section (1) of this section, he shall be punishable with imprisonment which may extend to six months, and shall also be liable to a fine.
(3) Nothing in this section shall apply to the disclosure -
(a) Of any of the particulars referred to in sub-section (1) of this section for the purposes of investigation or prosecution under this Act or the Indian Penal Code 1860 (45 of 1860) or any other enactment for the time being in force;
(b) Of such facts to an officer of the Central Government or any State Government as may be necessary for verification of such facts or for the purposes of enabling that Government to levy or realise any tax imposed by it;
©Of any such particulars where such disclosure is occasioned by the lawful employment under this Act of any process for the service of any notice or the recovery of any demand;
(d)Of any such particulars to a civil court in any suit or proceeding to which the Government or any Value Added Tax authority is a party and which relates to any matter arising out of any proceeding under this Act or under any other law for the time being in force authorising any Value Added Tax authority to exercise any powers thereunder;
(e) Of any such particulars by any public servant where the disclosure is occasioned by the lawful exercise by him of his powers under the Indian Stamp Act, 1899 (2 of 1899) to impound an insufficiently stamped document;
(f) Of any such particulars to the Reserve Bank of India as are required by that Bank to enable it to compile financial statistics of international investment and balance of payment;
(g)Of any such particulars to any officer appointed by the Comptroller and Auditor-General of India for purpose of audit of tax receipts or refunds;
(h)Of any such particulars relevant to any inquiry into a charge of misconduct in connection with income-tax proceedings against a legal practitioner or chartered accountant, to the authority empowered to take disciplinary action against members of the profession to which he belongs;
(i)Of such particulars to the officers of the Central Government or any State Government for such other purposes, as the Government may, by general or special order, direct; or
(j)Of any information relating to a class of dealers or class of transactions, if, in the opinion of the Commissioner it is desirable in the public interest to publish such information.
99.Publication and disclosure of information in respect of dealers and other persons in public interest.-
(1)Notwithstanding anything contained in this Act, if the Government is of the opinion that it is necessary or expedient in the public interest to publish or disclose the names of any dealers or other persons and any other particulars relating to any proceedings under this Act in respect of such dealers and persons, it may publish or disclose or cause to be published or disclosed such names and particulars in such manner as it thinks fit.
(2)No publication or disclosure under this section shall be made in relation to any tax levied or penalty imposed or interest levied or any conviction for any offence connected with any proceeding under this Act, until the time for presenting an appeal to the appropriate appellate body has expired without an appeal having been presented or the appeal, if presented has been disposed of.
Explanation.- In the case of a firm, company or other association of persons, the names of the partners of the firm, the directors, managing agents, secretaries, treasurers or managers of the company or the members of the association, as the case may be, may also be published or disclosed, if, in the opinion of the Government, the circumstances of the case justify it.
100.Power to collect statistics.-
(1) If the Commissioner considers that for the purposes of the better administration of this Act it is necessary so to do, he may by notification in the official Gazette, direct that statistics be collected relating to any matter dealt with, by or in connection with this Act.
(2)Upon such direction being made, the Commissioner or any person or persons authorised by him in this behalf may call upon all dealers or any class of dealers or persons to furnish such information or statements as may be stated therein relating to any matter in respect of which statistics are to be collected and the form in which the persons to whom or, the authorities to which, such information or returns should be furnished, the particulars which they should contain, and the intervals in which such information or returns should be furnished, shall be such as may be prescribed:
Provided that the call for information may be made by notification in the official Gazette, by notice in newspapers or in such other manner as, in the opinion of the Commissioner or the said person, is best calculated to bring to the attention of dealers and other persons.
(3)Without prejudice to the generality of the foregoing provisions, the Government may by rules provide that every dealer or, as the case may be, any class of dealer shall furnish such statements as may be prescribed, with the self assessment, and different provisions may be made for different classes of dealers.
101.Setting up of check-posts and barriers.-
The Government may, by notification in the official Gazette, set up check-posts or barriers, or both, at any place in Delhi with a view to preventing evasion of tax and other dues payable under this Act.
102.Power to make rules.-
(1)The Government may, by notification in the official Gazette, make rules for carrying out the purposes of this Act.
(2)In particular and without prejudice to the generality of the foregoing power, such rules may provide for :
(a)documents, testimony or other evidence constituting adequate proof under this Act,
(b)services which may constitute business under clause (i) of sub-clause (d) of sub-section (1) of section 2 of this Act;
©activities referred to under clause (ii) of sub-clause (j) of sub-section (1) of section 2 of this Act;
(d)tax period referred to under sub-clause (zi) of sub-section (1) of section 2 of this Act;
(e)time within which the return may be furnished;
(f)the further period referred to under sub-section (6) of section 3 of this Act;
(g)the conditions and method subject to which the amount to be included in the turnover of a dealer engaged in works contract may be determined under section 5 of this Act;
(h)conditions subject to which the dealers specified under the Fifth Schedule may be exempt from payment of tax under section 6 of this Act;
1[(hA) the conditions subject to which a dealer can make adjustments to tax in relation to the sale of goods under section 8 of this Act;]
(i)the method to be used by a dealer to calculate the amount of tax credit under section 9 or section 10 of this Act;
(j)the time at which the turnover, turnover of purchase or adjustment of tax or tax credit may arise under sub-section (4) of section 12 of this Act;
(k)form of statements, manner, conditions and restriction subject to which credit may be claimed for stock brought forward during transition under section 14 of this Act;
(l)the circumstances and the conditions subject to which, a dealer may be permitted to pay tax by way of composition under section 16 of this Act;
2[(lA) the procedure and forms relating to casual dealers under section 16A of this Act;]
(m)the procedure for and other matters incidental to registration of dealers under section 19 of this Act;
(n)form in which the statement of trading stock is to be furnished under sub-section (2) of section 20 of this Act;
(o)the amount of tax credit allowed to a dealer under sub-section (3) of section 20 of this Act;
(p)atters relating to amendment of registration certificate under section 21 of this Act;
(q)matters relating to cancellation of registration certificate under section 22 of this Act;
®the conditions, amount, manner, time within which and other matters incidental to the security required under section 25 of this Act;
(s)the manner in which, the time by when, the information to be included and the form in which the returns under section 26 or section 27 of this Act are to be furnished;
(t)the manner in which any tax, interest, penalty or any other amount due under this Act is to be paid;
(u)the restrictions and conditions subject to which and the manner and the time within which the application for refund may be made under section 41 of this Act;
(v)the manner and form in which the accounts and records are to be prepared under sub-section (3) of section 48 of this Act;
(w)the turnover, the form of the audit report, the particulars to be set forth in such report and the time of furnishing such report under section 49 of this Act;
(x)the amount referred to in sub-section (4) of section 50 or the conditions and restrictions referred to in sub-section (8) of section 50 of this Act;
(y)the particulars to be contained in the debit or credit notes under section 51 of this Act;
(z)the conditions subject to which the Commissioner may require any person to produce records, books of account, registers and other documents, answer questions or prepare and furnish additional information under sub-section (2) of section 59 of this Act;
(za)records that an owner or person in charge of a goods vehicle shall carry with him in respect of the goods carried in the goods vehicle under sub-section (2) of section 61of this Act and form, manner and amount of security under sub-section (5) of section 61 of this Act;
(zb)the manner in which an auction of goods or a goods vehicle shall be carried out under section 63 of this Act;
(zc)the restrictions and conditions subject to which the Commissioner may delegate his powers, and the form of evidence of such delegation under section 68 of this Act;
(zd)amount of fine prescribed under sub-section (5) of section 70 of this Act;
(ze)the form and manner in which an objection may be made under section 74 of this Act;
(zf)the form and manner in which appeals may be filed under section 76 of this Act, the manner in which such appeals shall be verified and the fees payable in respect thereof;
(zg)amount of fee under section 81 of this Act;
(zh)qualifications to be possessed by a Value Added Tax practitioner under section 82 of this Act;
(zi)Manner in which an application may be made and the period within which the determination shall be made under section 84 of this Act;
(zj)conditions subject to which, the Commissioner may authorise any officer or person subordinate to him to conduct investigations under section 92 of this Act;
(zk)period within which and the manner in which the declaration under section 95 of this Act is to be furnished;
(zl)the manner in which, and the time within which, applications shall be made (including fees payable in respect thereof), information furnished, securities given and notices served under this Act;
(zm)any other matter which is required to be, or may be, prescribed.
(3)In making any rules under this section, the Government may direct that a breach thereof shall be punishable with fine not exceeding five thousand rupees and, when the offence is a continuing one, with a fine not exceeding two hundred rupees per day during the continuance of such offence.
(4)Every rule made under this Act shall be laid, as soon as may be after it is made, before the Legislative Assembly of Delhi, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, the House agrees in making any modification in the rule or the House agrees that the rule should not be made, the rule shall have effect only in such modified form or be of no affect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.
103.Power to amend Schedules.-
If the Government is of opinion that it is expedient in the interest of general public so to do, it may, by notification in the official Gazette, add to, or omit from, or otherwise amend, the First, the Second, the Third, the Fourth, the Fifth, the Sixth, or the Seventh Schedules, prospectively, and thereupon the said Schedules shall be deemed to have been amended accordingly.
104.Power to remove difficulties.-
(1) If any difficulty arises in giving effect to the provisions of this Act, the Government may, by general or special order published in the official Gazette, make such provisions not inconsistent with the provisions of this Act as appear to it to be necessary or expedient for the removal of the difficulty:
Provided that no such order shall be made after the expiration of two years from the commencement of this Act.
(2)Every order made under sub-section (1) of this section shall be laid, as soon as may be after it is made, before the Legislative Assembly of Delhi.
105.Application to sales and purchases.-
(1) The tax imposed by section 3 of this Act shall apply to every -
(a) Sale, including an instalment sale and hire purchase of goods, made on and after 1st April, 2005;
(b)Sale in the form of the transfer of a right to use goods, to the extent that the right to use goods is exercised after 1st April, 2005.
(2)Tax credits arising under section 9 of this Act shall be allowed only for -
(a) A purchase, including a purchase under an instalment sale and hire purchase of goods, made on and after 1st April, 2005; and
(b)A purchase occurring in the form of the acquisition of a right to use goods, to the extent that the right to use goods is exercised after 1st April 2005.
Explanation.- This provision shall not prevent the person claiming the special tax credit allowed under section 14 of this Act.
(3)Where an amount is paid or received prior to 1st April,2005 in respect of a sale or purchase occurring after 1st April, 2005, and the person calculates his turnover or turnover of purchases based on amounts paid and received, the amount shall be treated as forming part of the person’s turnover or turnover of purchases in the tax period in which the sale occurs.
106.Repeal and savings.-
(1) The Delhi Sales Tax Act, 1975 (Act 43 of 1975), the Delhi Tax on Entry of Motor Vehicles into Local Areas Act, 1994(Delhi Act 4 of 1995),the Delhi Sales Tax on Works Contract Act, 1999 (Delhi Act 9 of 1999), and the 3[Delhi Sales Tax on Right to Use Goods Act,2002 (Delhi Act 13 of 2002)] as in force in Delhi (referred to in this section as the “said Acts"), are hereby repealed.
(2)Notwithstanding sub-section (1) of this section, such repeal shall not affect the previous operation of the said Acts or any right, title, entitlement, obligation or liability already acquired, accrued or incurred thereunder.
(3)For the purposes of sub-section (2) of this section, anything done or any action taken including any appointment, notification, notice, order, rule, form or certificate in the exercise of any powers conferred by or under the said Acts shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act, as if this Act were in force on the date on which such thing was done or action was taken, and all arrears of tax and other amounts due at the commencement of this Act may be recovered as if they had accrued under this Act.