Online filing of the second quarter return FORM DVAT 16

Section 27 requires every dealer to furnish the return in the appropriate Form prescribed under the rules, containing the information and particulars required in the Form and signed and verified in the manner specified in the Form.

The first proviso of the said rule empowers the Commissioner to seek resubmission of the return in the manner specified by him.

Sub-rule (3) of Rule 28 requires every registered dealer to furnish the return within twenty eight days from the end of the tax period.

Commissioner, VAT  foreseeing  the difficulties the dealers may face while furnishing the theses returns, vide Circular No. 18 of 2013-14 dated 01/10/2013 extended the last date for on line furnishing of Returns in DVAT-16 and DVAT-17 alongwith required annexures, and submission of hard copy of acknowledgement in Form DVAT 56, as per schedule given below:

Subsequent to extending the last date for submitting the returns, the department realized the difficulties being faced by the dealers in providing the information asked for in block R.10 further extended date for filling up Block R10 online separately for this block only by 30th November, 2013 for 2009-10 and by 31^st December, 2013 for the balance years.

While last date for furnishing the returns was extended vide Circular No. 18 issued under the signatures of the Commissioner, VAT, the Circular No. 22 splitting the block R10 from the Form DVAT 16 and extending the date form filling up block R10 is issued under the signatures of Special Commissioner (Poilcy), though the same is issued with the prior approval of the Commissioner vat.

The Circular No. 22 though not specifically stated but Circular 18 specifically stated are issued by the exercising the powers conferred upon Commissioner under Rule 49A of the Delhi Value Added Tax Rules, 2005. Rule 49A reads as hereunder:

49A.  Power to extend time

Where in these rules a period is prescribed for doing a certain act, the Commissioner may, for reasons to be recorded in writing, extend that period as may be specified by him.

Rule 49 though empowers the Commissioner to extend the time prescribed for doing a certain act, under the rules, it does not empowers the Commissioner to split a Form in parts, so that it can be filled separately.

The rule making authority has earlier categorized the dealers on the basis of their turnover in the previous year and have prescribed different time period within which they were required to file the periodic returns, but with amending Rule 28 the government has done away with such classification.  The rule also does not empower Commissioner to classify the dealers in different classes, and having observed the difficulties the dealers are facing in furnishing the returns, and having extended the date for furnishing the returns, in my view it will apply universally to all the dealers irrespective of the turnover of the dealer in previous year and it will be applicable universally to the block R10 for all the years as the act or rules does not allow the same to be split in parts.

The Circular No. 23 issuing the threat itself admits that Block R10 is part of the return in Form 1, in the absence of any provision in the act or rules splitting the return in parts or filling the same in parts may expose a dealer to penal action as a circular without the sanctity of law is bad in law.

The above observations are my study on the subject and is supported by the recent judgment of the Hon’ble Supreme Court of India in case of Union of India vs. S. Srinivasan in Civil Appeal No. 3185 of 2005 dated May 21, 2012 wherein after discussing various own earlier judgments observed that:

16. At this stage, it is apposite to state about the rule making powers of a delegating authority. If a rule goes beyond the rule making power conferred by the statute, the same has to be declared ultra vires. If a rule supplants any provision for which power has not been conferred, it becomes ultra vires. The basic test is to determine and consider the source of power which is relatable to the rule. Similarly, a rule must be in accord with the parent statute as it cannot travel beyond it. In this context, we may refer with profit to the decision in General Officer Commanding-in-Chief v. Dr. Subhash Chandra Yadav, wherein it has been held as follows:-

“......Before a rule can have the effect of a statutory provision, two conditions must be fulfilled, namely (1) it must conform to the provisions of the statute under which it is framed; and (2) it must also come within the scope and purview of the rule making power of the authority framing the rule. If either of these two conditions is not fulfilled, the rule so framed would be void.”

The above study is in continuation to my earlier study published in “caclubindia.com” on 23^rd October, 2013 under the title of “New Return Forms under Delhi Value Added Tax Act, 2005”. The return Forms are ultra vires on few other grounds also, which will be followed in my future studies on this point.

DEVINDER JAIN

VAT PRACTIONER, DELHI