Back
2013 Supreme(All) 1556
ALLAHABAD HIGH COURT
BEFORE : PRAKASH KRISHNA AND MANOJ KUMAR GUPTA, JJ.
PRAKASH PARCEL SERVICE LIMITED ....Petitioner
Versus
STATE OF U.P. AND OTHERS ....Respondents
(Civil Misc. Writ Petition (Tax) No. 1302 of 2011, decided on 31st May, 2013)
Counsel :
Kunwar Saksena and C.B. Tripathi for the Petitioner; C.S.C. for the Respondents.
Headnote:U.P. Value Added Tax Act, 2008—Sections 52, 79, 2(j)—U.P. Value Added Tax Rules—Rules 58, 2(m), 4, 77 and 78—Transit of goods—Transit declaration form—Power—Through the State by road—Power to prescribe documents and Forms in this regard—Delegation of power as such to Commissioner, Commercial Tax—Legality of—Seizure of goods on ground that consignment was not accompanied with down loaded transit declaration form—Submission of petitioner that power in this regard having been delegated to State Government, the State Government cannot further delegate power to commissioner prescribe such form—Whether Commissioner has exceeded in its power to prescribe a transit declaration form which must accompany with the goods passing through the State of U.P.—Action of Commissioner to prescribe the form to be carried by a driver of the transport vehicle carrying goods found justified in view of Rule 4(6) of the Rules—Government may sub-delegate to sub-authorites the statutory power—Rule 58 is a valid view of legislation—Rule 58 itself empowers the Commissioner to determine the documents which a driver of a vehicle should carry with while passing through the State of U.P. carrying the taxable goods—Regarding goods seized in question, there was no intention to evade the payment of tax, as such impugned seizure order held bad. [Paras 8 to 34]
Result; Petition Allowed.
Hon’ble Prakash Krishna, J.—The petitioner, a transporter of goods was transporting a consignment of steel casting machines valued at about Rs. 79 Lakhs booked at Ballabhgarh, Faridabad, Haryana to BHEL, a Government of India Enterprizes, Haridwar, State of Uttarakhand. The aforesaid consignment was intercepted on 5th of July, 2011 by the Assistant Commissioner, Mobile Squad, Commercial Tax, NOIDA within the state of Uttar Pradesh on the ground that the aforesaid consignment was not accompanied with down loaded transit declaration form as prescribed by the Commissioner, Commercial Tax, U.P. vide its circular No. 552 dated 30th of July, 2009. A show-cause notice was issued to the petitioner which was replied. The reply was not found satisfactory. The Joint Commissioner, Commercial Tax, SIB, NOIDA upheld the seizure order and directed the release of the goods on furnishing the security to the extent of 15% of the value of the goods in cash and 25% in the form of bank guarantee by the order dated 15th of July, 2011. The matter was carried unsuccessfully before the Commercial Tax Tribunal, NOIDA.
2. The case of the petitioner is that Section 52 of the U.P. Value Added Tax Act (herein after referred to as the Act) as it now exists, does not require the carrying of any such declaration form issued by the Commissioner, Commercial Tax, U.P. In other words, any such form prescribed by the the Commissioner, Commercial Tax, U.P. is illegal as the the Commissioner, Commercial Tax, U.P. is not authorized under the said Act or Rules to prescribe any such form. Such form could be prescribed by State Government through Rules and it could not delegate the power to the Commissioner. The prescription of form by the Commissioner suffers with the vice of excess delegation of power by the State Government who being the delegatee cannot further delegate its power to the the Commissioner, Commercial Tax, U.P.
3. By means of the above writ petition, the following reliefs have been sought for:
(i) to issue a writ, order or direction in the nature of certiorari, quashing the Rule-58 of the U.P. Value Added Tax Rules in so far as it authorized the Commissioner, Commercial Tax, U.P., Lucknow to prescribe documents and procedure in respect of transit of goods by road through the State.
(ii) to issue a writ, order or direction in the nature of certiorari, quashing the circular letter dated 30.7.09 issued by the Commissioner, Commercial Tax, U.P., Lucknow (respondent No. 2) (Annexure-2 to the writ petition).
(iii) to issue a writ, order or direction, in the nature of certiorari, quashing the order dated 28.7.11 passed by the respondent No. 3 in so far as it upheld the order of seizure of goods and directed furnishing of security for obtaining release of the goods.
(iv) to issue a writ, order or direction, in the nature of certiorari, quashing the order of seizure of goods dated 12.7.11 passed by the respondent No. 4 (Annexure-5 to the writ petition).
(v) to issue a writ, order or direction, in the nature of mandamus directing the respondent No. 4 to release the goods of the petitioner forthwith without furnishing any security in respect thereof.
(vi) to issue any other writ or order which this Hon’ble Court may deem fit and proper in the circumstances of the case.
A n d
(vii) to award the cost of the petition to the petitioner.
In the counter-affidavit, the prescription of form by the the Commissioner, Commercial Tax, U.P. has been sought to be justified.
4. Heard Sri Kunwar Saxena alongwith Sri N.C. Gupta, learned counsel for the petitioner and Sri Vishnu Pratap, learned standing counsel for the respondents.
5. The learned counsel for the petitioner submitted that Section 79 of the Act authorizes the State Government to make Rules to carry out the purposes of the Act. By laying emphasis on sub-section (2) (f) of Section 79, the submission is that it is the State Government who is required to prescribe the form. The power having been delegated to the
