Kumagai Skanska Hcc Itochu Group v. The Commissioner of Value Added Tax & Anr

MANMOHAN, J. November 1, 2010 dk

* THE HIGH COURT OF DELHI AT NEW DELHI Judgment Reserved on: 14.09.2010 % Judgment Pronounced on: 01.11.2010 + WP (C) No. 3001 of 2010 and CM No. 5987/2010 Reliance Infrastructure Ltd. … Petitioner Through: Mr. S. Ganesh, Mr. Neeraj Kishan Kaul, Sr. Advs. with Mr. Sushil Verma, Adv. Versus Commissioner of Trade Taxes & Ors. … Respondents Through: Mr. Parag P. Tripathi, ASG with Mr. H.L. Taneja, Mr. Rajesh Mahana, Mr. Amey Nargolkar, Advocates + WP (C) No. 274 of 2010 and CM No. 581/2010 Dharam Pal Satya Pal Ltd. & Anr. … Petitioner Through: Mr. S. Ganesh, Mr. Neeraj Kishan Kaul, Sr. Advs. with Mr. Ruchir Bhatia, Mr. Sumit Batra, Adv. Versus The Commissioner, Value Added Tax & Anr. … Respondents Through: Mr. Parag P. Tripathi, ASG with Mr. H.L. Taneja, Mr. Rajesh Mahana, Mr. Amey Nargolkar, Advocates + WP (C) No. 974 of 2010 and CM No. 1997/2010 M/s Kumagai Skanska HCC ITOCHU Group … Petitioner Through: Mr. Rajesh Jain, Ms. Neetika Khanna, Mr. Sumit Batra, Advs. Versus The Commissioner, Value Added Tax & Anr. … Respondents Through: Mr. Parag P. Tripathi, ASG with Mr. H.L. Taneja, Mr. Rajesh Mahana, Mr. Amey Nargolkar, Advocates Mrs. Avnish Ahlawat, Advocate. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE MANMOHAN 1. Whether reporters of the local papers be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in the Digest? DIPAK MISRA, CJ Regard being had to the commonality of controversy, these writ petitions were heard analogously and are disposed of by a singular order. For the sake of clarity and convenience, the facts in WP(C) No. 3001/2010 are exposited herein. 2. Invoking the jurisdiction of this Court under Article 226 of the Constitution of India, the petitioner, a company incorporated under the Companies Act, 1956, has called in question the legality and validity of the initiation of the revisional proceedings against the petitioner by issuance of notice dated 08.04.2010 under Section 74A read with Section 106 of the Delhi Value Added Tax Act, 2004 (for brevity "the DVAT Act") by the Commissioner, Trade Taxes, Delhi, the first respondent herein, purporting to revise the orders of the Additional Commissioner dated 14.01.2008 and 25.01.2008 and to restore the order passed by the assessing authority on 03.03.2006. It is pleaded that orders of the assessing authority as well as that of the first appellate authority relate to assessment year 2004-05 to which Delhi Sales Tax Act, 1975 (for brevity "DST Act") was applicable and not the provisions of the DVAT Act which came into force with effect from 01.04.2005. It is contended that the initiation of the revisional proceedings against the petitioner is wholly without jurisdiction and without the authority of law inasmuch as the power of revision engrafted in Section 74A of the DVAT Act cannot be pressed into service in respect of orders passed under the provisions of the DST Act. That apart, the provision of Section 74A of the DVAT Act has no application at all to the year 2004-05 during which the the said provision had not come into force. It is urged that the issue is squarely covered in favour of the petitioners by the decisions rendered by this Court in International Metro Civil Contractors v. Commissioner of Sales Tax/VAT & Another, [2008] 16 VST 329 (Delhi) and LG Electronics (India) Ltd. v. Commissioner of Trade & Taxes, New Delhi [2008] 16 VST 361 (Delhi) and, therefore, the petitioner should not be compelled to face the proceedings which is fundamentally not sustainable being ab initio void. 3. It is averred that the petitioner had effected sales of electrical equipments to the various undertakings such as M/s BSES Yamuna Power Ltd. and M/s BSES Rajdhani Power Ltd., etc. which are engaged in generation/distribution of electricity in Delhi. The sales were made against exemption certificates issued by the said companies under Rule 11 of Delhi Sales Tax Rules, 1975. The petitioner had not collected any