DELHI

SALES TAX
CASES Mode of Citation
(2020) 58 DSTC

A Foremost Journal on GST & Value Added Tax Laws

Founded in 1962 VOL. 58 - PART 5
HIGHLIGHTS

1. Copies of Orders of Hon'ble Supreme Court in suo moto

proceedings in respect to Limitation in General N-78

2. Copies of Circulars clarifying Legal Position Regarding

Framing of Assessments under the Central Act. N-82

3. Video Conferencing Rules N-108

4. Transitional Input Tax Credit – Judicial Encounter

An Article by Shri Ravi Chandhok A-115

Sales Tax Bar Association (Regd.)

Knowledge, Diffusion & Promotion Section
Trade & Taxes Department, 2nd Floor, Bikrikar Bhawan, New Delhi-110002
 DELHI SALES TAX CASES
Volume 58 Part 7
2020

INDEX

List of Orders, Circulars reported in this part

1. From the desk of Editor-in-Chief N-73

2. Extension of Due Dates – Neetika Khanna, Advocate N-75
3. Copy of order of Supreme Court dated 23.03.2020 in Suo Moto N-78
Writ Petition (Civil) No(s). 3/2020 in respect to Limitation being
extended till further order.
4. Copy of order of Supreme Court dated 06.05.2020 in Suo Moto N-79
Writ Petition (Civil) No(s). 3/2020 in respect to Limitation being
extended till further order.
5. Circulars Clarifying the Legal Position in Respect to Framing of
Central Assessments on the Basis of Form 9
i. Copy of Circular No. 5 of 2014-15 N-82
ii. Copy of Circular No. 38 of 2015-16 N-82
iii. Copy of Circular No. 6 of 2017-18 N-84
iv. Copy of Circular No. 3 of 2018-19 N-85
v. Copy of Circular No. 10 of 2018-19 N-85
vi. Copy of Circular No. 1 of 2019-20 N-86
vii. Copy of Circular No. 3 of 2019-20 N-88
viii. Copy of Circular No. 9 of 2019-20 N-88
ix. Copy of Circular No. 1 of 2020-21 N-89
x. Copy of Circular No. 2 of 2020-21 N-90
xi. Copy of Circular No. 3 of 2020-21 N-92
6. Copy of order dated 01.06.2020 in respect to Lockdown N-93
7. Copy of order extending lockdown in containment zones upto N-98
30.06.2020 and to reopen prohibited activities in a phased
manner in areas outside containement zones
8. Copy of High Court of Delhi Rules for Video Conferencing N-108
of Courts 2020.
9. Transitional Input Tax Credit – Judicial Encounter A-115
An Article by Shri Ravi Chandhok
 Raj K. Batra, Advocate,
305, Akash Deep Building,
26A, Barakhamba Road,
Connaught Place,
New Delhi-110001
Mobile 9810035077

FROM THE DESK OF EDITOR-IN-CHIEF

Dear Members,

I am confident that all of you are safe within the safe confines of your
homes and are healthy. Please continue following the new mantra.

Stay Home, Stay Safe and Stay Healthy.

I have realized that anxiety level of our members has increased

manifold due to central assessments of CST / VAT for the assessment year
2015-16.

Friends, please do not worry. All stake holders are human beings.
Everybody is conscious of ground realities. No petition would be thrown out
on technicalities. Hon’ble Supreme Court has taken suo moto cognizance
of the whole issue and has passed orders with directions to every Court /
Tribunal and authority to obey which otherwise every authority is bound to
obey Limitation has been kept open till further order. Copies of orders are
printed for ready reference.

Further, we all know that assessment orders have been framed

mechanically. None of these orders bear the signatures of assessing
authorities. There is no mention of issuance and service of any notice
affording reasonable time to respond to notices. All these orders deserve
to be set aside.

The stand of the Revenue is also in favour of dealers. It has been said
time and again that assessments are to be framed on the basis of Form
9, unless there is something on record which requires further records. It
may not be out of place to say that if the assessing authority requires
verification of Forms, he has the facility of verification through TINSYX.
N-74 DELHI SALES TAX CASES 2020

I have collected all the Circulars of the Department clarifying the

issue of framing of central assessments on the basis of Form-9. These
are printed in this issue of DSTC, in the e-book format which has been
formatted by Ms. Neetika Khanna, Secretary of the association. An index
is provided at the beginning of this part. If you click at a particular Circular,
the required page will open. All these Circulars are self-explanatory and
clarify the stand of the Department / Revenue elucidely.

Team STBA has requested the Commissioner VAT / DGST to start

taking up proceedings in the Department on Video Conferencing. This
request was made on 01.06.2020. Simultaneously Hon’ble High Court of
Delhi has notified Video Conferencing Rules. These rules may be guiding
force for rule making authority of the Government of Delhi / Department.
These rules are printed for the members so that they prepare themselves
for new procedure accordingly.

I hope this compilation is found useful by the readers.

New Delhi Raj K. Batra, Advocate

June 2, 2020 Editor-in-Chief, DSTC
 EXTENSION OF DUE DATES

Compiled by
Neetika Khanna, Advocate

GST CMP – 02

Notification No. 30/2020-CT dated 03.04.2020 extended due date for

filing GST CMP – 02 for the financial year 2020-21 upto 30.06.2020

GST CMP – 08

Notification No. 12/2020-CT dated 21.03.2020 waived off the

requirement of filing FORM GST CMP-08 for all tax periods of the financial
year 2019-20 where the persons have filed GSTR-3B instead of CMP – 08.

Notification No. 34/2020-CT dated 30.04.2020 extended due date

for filing GST CMP – 08 for the Q.E. 31.03.2020 upto 07.07.2020 – For
clarifications see Circular No. 136/06/2020-GST dt. 03.04.2020.

GST GSTR – 1

1. Notification No. 04/2020-CT dated 10.01.2020 extended the due

date for filing of FORM GSTR – 1 for the tax periods from July,
2017 to November, 2018 upto 17.01.2020.
2. Notification No. 12/2020-CT dated 21.03.2020 waived off the
requirement of filing FORM GSTR – 1 for all tax periods of
Financial Year 2019-20 for the persons who filed Form GSTR-3B
instead of requirement of Form GST CMP – 08. For details see the
notification.
3. Notification No. 27/2020-CT dated 23.03.2020 extended due date
for filing Form GSTR-1 for quarter April 2020 to June, 2020 upto
31.07.2020 and for the quarter July, 2020 to September, 2020 upto
31.10.2020 for the registered persons having turnover upto Rs.
1.5 crore. The registered persons are required to follow special
procedure. See notification.
4. Notification No. 28/2020-CT dated 23.03.2020 provides that
registered persons having turnover of more than Rs. 1.5 Cr. shall
furnish Form GSTR – 1 for the months of April, 2020 to September,
2020, till the 11th day of the month succeeding such month.
[See notifications in respect to conditional waiver of interest
and Late Fee also]
N-76 DELHI SALES TAX CASES 2020

GST GSTR – 3B

1. Notification No. 07/2020-CT dated 03.02.2020 prescribed the due

date for filing FORM GSTR - 3B for taxpayers of specified States
having turnover upto Rs. 5 Crores for the month of January, 2020,
February, 2020 and March, 2020, upto 22.02.2020, 22.03.2020 and
22.04.2020 and for other States for the month of January, 2020,
February, 2020 and March, 2020, upto 24.02.2020, 24.03.2020
and 24.04.2020. The filing dates are staggered State wise. For
details of the States, see the Notification.

2. Notification No. 29/2020-CT dated 23.03.2020 extended the due

date for filing FORM GSTR-3B for the months of April, 2020 to
September, 2020 by 20th/22nd/24th (State specific and turnover
specific) day of the month succeeding such month. For payment
of taxes, refer to the Notification.

3. Notification No. 36/2020-CT dated 03.04.2020 extended the due

date for filing of Form GSTR-3B for the month of May, 2020 for
dealers having turnover of more than Rs. 5 Crores, upto 27.06.2020
and for persons having turnover of less than Rs. 5 Crore, upto
12.07.2020/14.07.2020. The due date is State-specific. Please
see the notification.

[See notifications in respect to conditional waiver of interest

and Late Fee also]

GST GSTR – 4

Notification No. 34/2020-CT dated 03.04.2020 has extended the due

date for filing FORM GSTR-4 for the financial year ending 31.03.2020 upto
15.07.2020. See Circular No. 136/06/2020-GST dated 03.04.2020 also.

GST GSTR-9/9C

1. Notification No. 06/2020-CT dated 03.02.2020 has extended

the due date for filing (annual return) Form GSTR-9/9C for the period
01.07.2017 to 31.03.2018 upto 05.02.2020/07.02.2020. A corrigendum
dated 04.02.2020 has been issued. Please see the corrigendum also. The
due date is State specific. See the notification and corrigendum carefully.

2. Notification No. 09/2020-CT dated 16.03.2020 has granted

exemption to foreign airlines from furnishing reconciliation statement in
Form GSTR-9C subject to certain conditions. See the Notification.
N-77 LEGAL UPDATES 2020

3. Notification No. 15/2020-CT dated 23.03.2020 has extended the

due date for filing (annual return) Form GSTR-9/9C for the financial year
2018-19 upto 30.06.2020.

4. Notification No. 41/2020-CT dated 05.05.2020 has extended the

time for filing GSTR-9/9C upto 30.09.2020 for the financial year 2018-19.

GST ITC – 03

Notification No. 30/2020-CT dated 03.04.2020 extended due date for

filing GST ITC – 03 for the financial year 2020-21 upto 31.07.2020. See
Circular No. 136/06/2020-GST dated 03.04.2020.

GST TRAN – 1

Order No. 01/2020 dated 07.02.2020 has extended the time for filing
Form GST TRAN – 1 upto 31.03.2020 for specified persons. See the
notification.

General compliances in view of COVID – 19

Notification No. 35/2020-CT dated 03.02.2020 has extended the due

date for various compliances/actions to be taken by the Department or
by the tax payers upto 30.06.2020 if the due date for compliance falls
between 20.03.2020 to 29.06.2020. This extension is subject to certain
conditions. See the notification and Circular Nos. 136/06/2020-GST
dated 03.04.2020 and 137/07/2020-GST dated 13.04.2020 also. Validity
of E-way bills expiring during the period 20.03.2020 to 15.04.2020 has also
been extended upto 30.04.2020.

E-way Bill

Notification No. 40/2020-CT dated 05.05.2020 has extended the due

date for E-way bill generated upto 24.03.2020 and expiring during the
period 20.03.2020 to 15.04.2020 upto 31.05.2020.

DISCLAIMER
This legal update is a copy of Neetika Khanna, Advocate. This update
does not intend to address the circumstances of any particular individual or
entity. This update is based on information available in public domain and
comments are based on the views of the author. No person should act on
such information without appropriate professional advice.
N-78 DELHI SALES TAX CASES 2020

ITEM NO. 12 COURT NO. 1 SECTION PIL-W

SUPREME COURT OF INDIA

RECORD OF PROCEEDINGS

Suo Motu Writ Petition (Civil) No(s). 3/2020

IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION

Date: 23.03.2020 This petition was taken up suo motu for hearing today.

CORAM: Hon’ble the Chief Justice

Hon’ble Mr. Justice L. Nageswara Rao
Hon’ble Mr. Justice Surya Kant

By Courts Motion

Counsel Present Mr. Tushar Mehta, SG

Ms. Swati Ghildiyal, Adv.
Mr. Ankur Talwar, Adv.
Mr. G.S.Makkar, Adv.
Mr. Raj Bahadur, Adv.
Mr. B.V.Balaram Das, AOR
Mr. Dushyant Dave, Sr. Adv.

UPON hearing the counsel the Court made the following

ORDER

This Court has taken Suo Motu cognizance of the situation arising out
of the challenge faced by the country on account of Covid-19 Virus and
resultant difficulties that may be faced by litigants across the country in
filing their petitions/applications/suits/ appeals/all other proceedings within
the period of limitation prescribed under the general law of limitation or
under Special Laws (both Central and/or State).

To obviate such difficulties and to ensure that lawyers/litigants do not

have to come physically to file such proceedings in respective Courts/
Tribunals across the country including this Court, it is hereby ordered that
a period of limitation in all such proceedings, irrespective of the limitation
prescribed under the general law or Special Laws whether condonable or
not shall stand extended w.e.f. 15th March 2020 till further order/s to be
passed by this Court in present proceedings.
N-79 LEGAL UPDATES 2020

We are exercising this power under Article 142 read with Article 141 of
the Constitution of India and declare that this order is a binding order within
the meaning of Article 141 on all Courts/Tribunals and authorities.

This order may be brought to the notice of all High Courts for being
communicated to all subordinate Courts/Tribunals within their respective
jurisdiction.

Issue notice to all the Registrars General of the High Courts, returnable
in four weeks.

(Sanjay Kumar – II) (Mukesh Nasa) (Indu Kumari Pokhriyal)

Astt.Registrar-cum-PS Court Master Assistant Registrar

ITEM NO. 6 Virtual Court 1 SECTION PIL-W

SUPREME COURT OF INDIA

RECORD OF PROCEEDINGS

Suo Motu Writ Petition (Civil) No (S). 3/2020

IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION

WITH
I.A. No. 48411/2020 – APPROPRIATE ORDERS/DIRECTIONS
I.A. No. 48375/2020 – CLARIFICATION/DIRECTION
I.A. No. 48511/2020 – CLARIFICATION/DIRECTION
I.A. No. 48461/2020 – CLARIFICATION/DIRECTION
I.A. No. 48374/2020 – INTERVENTION APPLICATION
I.A. No. 48416/2020 – INTERVENTION APPLICATION
I.A. No. 48408/2020 – INTERVENTION APPLICATION
I.A. No. ………. OF 2020 – FILED BY MR. NARAYAN VASUDEO
MARATHE, APPLICANT – IN - PERSON

Date: 06.05.2020 This matter (s) was called on for hearing today.

CORAM: HON’BLE THE CHIEF JUSTICE

HON’BLE MR. JUSTICE DEEPAK GUPTA
HON’BLE MR. JUSTICE HRISHIKESH ROY
N-80 DELHI SALES TAX CASES 2020

By Courts Motion

Counsel for the parties Mr. K.K.Venugopal, Ld. AG

Mr. Tushar Mehta, Ld. SG
Mr. B.V.Balram Das, AOR
Mr. Dushyant Dave, Sr. Adv.
Mr. Sameer Pandit, Adv.
Mr. Nikhil Ranjan, Adv.
Mr. Utkarsh Kulvi, Adv.
Mr. Pranaya Goyal, AOR
Ms. Meenakshi Arora, Sr. Adv.
Mr. Ankur Mahindro, Adv.
Ms. Anannya Ghosh, AOR
Mr. Arjun Garg, AOR
Mr. Divyakant Lahoti, AOR
Mr. Parikshit Ahuja, Adv.
Ms. Praveena Bisht, Adv.
Mr. Kartik Lahoti, Adv.
Ms. Madhur Jhavar, Adv.
Ms. Vindya Mehra, Adv.
Mr. Mayank Kshirsagar, AOR
Mr. Sahil Mongi, Adv.
Mr. Aniruddha P. Mayee, AOR
Mr. Narayan Marathe, Applicant-in-person

UPON hearing the counsel the Court made the following

ORDER

I.A. No. 48411/2020 – FOR DIRECTIONS

By way of filing this application for directions, the applicant has made
the following prayer:

“To issue appropriate directions qua (i) arbitration proceedings in

relation to section 29A of the Arbitration and Conciliation Act, 1996
and (ii) initiation of proceedings under section 138 of the Negotiable
Instruments Act, 1881;”

In view of this Court’s earlier order dated 23.03.2020 passed in Suo

Motu Writ Petition (Civil) No.3/2020 and taking into consideration the effect
of the Corona Virus (COVID 19) and resultant difficulties being faced by
the lawyers and litigants and with a view to obviate such difficulties and to
N-81 LEGAL UPDATES 2020

ensure that lawyers/litigants do not have to come physically to file such

proceedings in respective Courts/Tribunal across the country including
this Court, it is hereby ordered that all periods of limitation prescribed
under the Arbitration and Conciliation Act, 1996 and under section 138 of
the Negotiable Instruments Act 1881 shall be extended with effect from
15.03.2020 till further orders to be passed by this Court in the present
proceedings.

In case the limitation has expired after 15.03.2020 then the period from
15.03.2020 till the date on which the lockdown is lifted in the jurisdictional
area where the dispute lies or where the cause of action arises shall be
extended for a period of 15 days after the lifting of lockdown.

In view of the above, the instant interlocutory application is disposed

of.

IA No.48375/2020 – CLARIFICATION/DIRECTION AND IA

No.48511/2020 – CLARIFICATION/DIRECTION AND IA
No.48461/2020 – CLARIFICATION/DIRECTION AND IA
No.48374/2020 – INTERVENTION APPLICATION AND IA
No.48416/2020 – INTERVENTION APPLICATION AND IA
No.48408/2020 – INTERVENTION APPLICATION

Issue notice.

Waive service on behalf of the respondent – Union of India since Mr.

K. K. Venugopal, learned Attorney General for India and Mr. Tushar Mehta,
learned Solicitor General, appear on its behalf.

Let notice be issued to other respondents.

(Charanjeet Kaur) (Sanjay Kumar - II) (Indu Kumari Pokhriyal)

AR-cum-PS AR-cum-PS Assistant Registrar
N-82 DELHI SALES TAX CASES 2020

Circulars Clarifying the Legal Position in Respect to Framing of

Central Assessments on the Basis of Form 9

CIRCULAR NO. 5 OF 2014-15

The reconciliation return in CST Form 9 relating to receipt of

declarations/ certificates for a year has been notified vide Notification
No.F.3(27)/Fin(Rev-I)/2013-14/dsVI/292 dated 05/03/2014. Therefore, all
eligible dealers are required to furnish relevant information for the year
2013-14 latest by 30/09/2014. In the Form 9, dealer can also furnish the
details of pendency of forms for preceding three years, viz. 2010-11, 2011-
12, 2012-13, if no assessment has been framed for the relevant year.

2. Accordingly, no Assessing Authorities shall frame any central

assessment related to Central declaration forms and where no refund is
involved, as the same shall be generated by the Systems & Operation
Branch on the basis of the information furnished by the dealer in Form 9.

3. However, Assessing Authorities are allowed to frame the central

assessment order of the dealer, only in such cases where it is required for
processing the refund claims.

4. All Zonal Authorities may ensure strict compliance of the circular.

5. This issues with the prior approval of Commissioner, VAT conveyed

vide Dy.No. 903 dated 31/07/2014.
Sd/-
(Sanjeev Ahuja)
Spl.Commissioner(Policy)
No.F.3(444)/Policy/VAT/2014/231-237 Dated 04/08/2014

CIRCULAR NO. 38 OF 2015-16

Sub - Framing of central assessments

All Assessing Authorities were advised from framing any

assessment u/s 9(2) of Central Sales Tax Act, 1956 read with section 32
of Delhi Value Added Tax Act, 2004 necessitated for deficiency of central
statutory forms as per instruction contained in circular No. 5 of 2014-15
issued vide No. F.3(444)/Policy/ VAT/2014/231-237 dated 04-08-2015,
as filing of hard copy of said forms has since been dispensed with by
N-83 LEGAL UPDATES 2020

prescribing return in Form 9 by suitably amending the Central Sales

Tax (Delhi) Rules, 2005, however assessing authorities were also
advised to frame such assessments if it is required to process refund cases
only.

2. Registered dealers who have made inter-state sales at concessional

rates against ‘C’ forms or made stock transfers against ‘F’ Forms or made
penultimate sale made against ‘H’ forms are required to file details of such
forms in a reconciliation return (Form 9). The dealers, who have not filed
return (Form 9) despite of the fact that they were required to do so or
the dealers who have filed the returns but stated deficiency of statutory
forms therein and not paid the due tax for the deficiency and interest due
thereon, are required to be assessed for tax due to the government within
the given time frame.

3. The details of information furnished in Form 9 is available in

database of the departmental server. System/EDP branch shall provide the
information so received and the amount of tax to be levied for deficiency of
the forms by comparing it with information filed by the dealer in periodical
returns filed in Form 1. A specimen of the editable assessment order will
also be made available by system branch and Assessing Authorities are
required to frame the orders accordingly. If an assessment has already
been framed for any tax period, no fresh assessment order is required
to be framed for same tax period again. The original order may be re-
assessed if so needed provided no objection/appeal has been filed against
the original order.

4. In no case, hard copy of the statutory forms for which information

has been filed in Form 9 or not may be accepted while framing the
assessment. Authenticity of the forms for which information has been filed
in Form 9 can be verified from TINXSYS site if so required. For deficiency
of ‘H’ forms for sale made to Delhi dealers and reported in local Return
Form DVAT – 16, assessment may be framed under the local DVAT Act. To
begin with, the exercise may be completed for the year 2011-12 by the end
of February, 2016. Thereafter, cases for next assessment years 2012-13
and 2013-14 respectively may be taken up after receiving the details from
the systems branch.

OHAs/SOHAs shall allow the objection/appeal to be filed for the

assessment orders framed for deficiency of forms only after ensuring
that the information of the forms, received after framing assessment
orders whether attached with the objection/appeal or produced during the
proceedings, have been filed online.
N-84 DELHI SALES TAX CASES 2020

This issues with the approval Commissioner, Value Added Tax.

Sd/-
(R.K.Mishra)
Spl. Commissioner (Policy)

No. F.3(636)/Policy/VAT/2016/1463-69 Dated: 18.02.2016

CIRCULAR NO 6 of 2017-18

Subject: Multiple Assessment Orders

It has been brought to the notice that in few cases multiple Assessment
Orders overlapping the same tax period under the same Act have been
issued on one pretext or the other either under DVAT Act or CST Act.

The competent authority has desired that wherever such cases are
brought to the knowledge of concerned Assessing Authority and if the
concerned dealer approaches the Assessing Authority with details of such
orders which are multiple Assessment Orders of the category mentioned
above, then necessary remedies/measures as prescribed under Section
74B of DVAT Act, 2004 read with Rule 36B of DVAT Rule, 2005 relating to
the review/rectification should be exercised as per the provisions of law.

The Assessing Authorities are further advised that before exercising

the powers under Section 74B of DVAT Act for review/rectification, the
provisions contained in Rule 36B and in particular Rule 36B(7) should be
kept in mind while considering and deciding the request of the dealer.

The Assessing Authorities are further directed to ensure that hereinafter,

whenever any Assessment Order is issued, it should not result in issuing
the multiple orders overlapping the same tax period under the same Act
i.e. DVAT Act or CST Act as the case may be.

This issues with the approval of the Commissioner, VAT.

Sd/-
(Ranjeet Singh)
Joint Commissioner (Policy)

No. F.3(767)/Policy/VAT/2017/285-92 Dated: 24.05.2017

N-85 LEGAL UPDATES 2020

CIRCULAR NO. 3 OF 2018-19

Subject: Regarding Assessment orders under the CST Act, 1956 for
the year 2013-14

This is in continuation to this department’s previous circular dated

17.04.2018 on the above captioned subject. It has been reported that in
some assessment cases pertaining to the year 2013-14, FORM 9 has not
been considered or has been partly considered and in some other cases
more than one assessment order for the particular period. In this regard it
is clarified that in assessment cases pertaining to the year 2013-14, where
FORM 9 has not been considered or partly considered and more than one
assessments have been made, the assessing authorities are advised to
consider all such cases, under Section 74B of the DVAT Act, 2004 or under
any other relevant provisions of law.

The Assessing Authorities are further advised that before exercising

the powers under Section 74B of the DVAT Act, 2004, the provisions
contained in Rule 36B and in particular Rule 36B(7) should be kept in mind
while considering and deciding the request of the dealer, subject to the
satisfaction of the Assessing Authority, who may, if needed, also call for the
documents as are considered necessary by him.

The issue of Multiple Assessment has also been dealt with in detail
vide Circular dated 17.04.18 and 24.05.17.

This issues with the prior approval of the Commissioner, VAT.

Sd/-
(Kuldeep Singh)
Joint Commissioner (Policy)

No. F.3(767)/Policy/VAT/2017/Pt. File/146-51 Dated: 28.03.2019

CIRCULAR NO. 10 OF 2018-19

Subject: Regarding Assessment orders under the CST Act, 1956 for
the year 2014-15

This is in continuation to this department’s previous circular No. 03 of

2018-19 issued on dated 15.05.18.
N-86 DELHI SALES TAX CASES 2020

It has been reported that in some Assessment cases pertaining to

the year 2014-15, FORM 9 has not been considered or has been partly
considered (Even though filed by the dealer) and in some other cases
more than one Assessment order issued for the particular period.

In this regard it is clarified that in Assessment cases pertaining to the

year 2014-15, where FORM 9 has not been considered or partly considered
(Even though filed by the dealer) and more than one Assessments have
been made, the Assessing Authorities are advised to consider all such
cases, under Section 74B of the DVAT Act, 2004 or under any other
relevant provisions of law.

The Assessing Authorities are further advised that before exercising

the powers under Section 74B of the DVAT Act, 2004, the provisions
contained in Rule 36B and in particular Rule 36B(7) should be kept in mind
while considering and deciding the request of the dealer, subject to the
satisfaction of the Assessing Authority, who may if needed, also call for the
documents as are considered necessary by him/her.

The issue of Multiple Assessment has already been dealt with in detail
vide Circular No. 6 of 2017-18 issued on dated 24.05.17.

This issues with the prior approval of the Commissioner, (T&T).

Sd/-
(Rajesh Goyal)
Addl. Commissioner (Policy)

No. F.3(767)/Policy/VAT/2017/Pt. File/1228-33 Dated: 28.03.2019

CIRCULAR NO. 01 OF 2019-20

Sub: Regarding Assessment Orders under CST Act, 1956 for the
year 2014-15.

A representation dated 02.05.2019 has been received from Sales

Tax Bar Association, New Delhi, wherein it has been highlighted that the
Assessment Orders passed by the Assessing Officers for the assessment
year 2014-15 under the DVAT Act suffer from some deficiencies/infirmities.
It has been stated that the demands created in the assessment orders
are different and vary from the actual demand to be recovered. Further,
in many cases, there is no tax period mentioned in the assessment orders
and the tax period column is shown “BLANK”.
N-87 LEGAL UPDATES 2020

The matter has been examined after obtaining feedback few Assessing
Officers as well as technical team of System Branch of the Department.
The technical team has informed that there was some bug in the system,
due to which such type of deficient orders have occurred/generated. The
System Branch has already taken corrective measures in this regard and
bug has been removed from the system. Therefore, in future, such kind
of deficiencies/infirmities would not arise while passing the assessment
orders by the Assessing officers.

However, in order to address the deficiencies/infirmities occurred in

the assessment orders already passed by the Assessing Officers for the
assessment year 2014-15, it is clarified that the Assessing Authorities are
advised to consider all such cases under Section 74(B) of the DVAT Act
read with Rule 36(B) of DDVAT Rules, 2005 and other relevant provisions
of law.

This issues with the prior approval of Commissioner (T&T).

Sd/-
(Rajesh Goyal)
Addl. Commissioner (Policy)

No. F.3(767)/Policy/VAT/2017/Pt. File/159-164 Dated: 12.06.2019

CIRCULAR

All Ward Incharges/GSTOs undertaking the Assessment under DVAT

Act are hereby directed to ensure that the notices for Assessment and
other relevant notices are duly served upon the Assessee with proper
service copy. They should also ensure that other due procedure is
observed for any Assessment being undertaken in the Act. No assessment
should be done ex-parte if the notice has not been duly served upon the
assessee.

This issues with the prior approval of Commissioner (VAT).

Sd/-
(Balvinder Kaur)
GSTO (Policy)

No. F.3(288)/Policy/VAT/2017/PF/697-701 Dated: 16.01.2020

N-88 DELHI SALES TAX CASES 2020

CIRCULAR NO. 03 OF 2019-20

Sub: Assessment Order issued by the Assessing Officer under CST

(Delhi) Rules, 1957

It has been brought to the notice of Competent Authority that while

processing the default assessment (Assessment Orders) on the basis of
the return through Form – 9, filed by the dealer, the Assessing Officer are
not following the laid down procedure.

In this regard, it is informed that the procedure to be followed in such

cases have been issued on various occasions. Some of these circulars,
namely, (i) F.3(767)/Policy/VAT/2017/Pt.file/1228-33 dated 28.03.2019, (ii)
F.3(636)/Policy/VAT/2016/1463-69 dated 18.02.2016 and (iii) No. 2986-92
dated 01.05.2015 are enclosed for reference.

All the Assessing Authorities are hereby directed to follow the

instructions laid down in this regard. Further, all Zonal Authorities are also
requested to ensure compliance of these instructions.

This issues with the approval of the Commissioner, Trade & Taxes.

Encl: As above.
Sd/-
(Anand Kumar Tiwari)
Additional Commissioner (Policy)

No. F.3(636)/Policy/VAT/2016/770-73 Dated: 19.03.2020

CIRCULAR NO. 09 OF 2019-20

Subject: Regarding Assessment of pending cases of mismatch

of Annexure 2A-2B under DVAT Act/Rules and pending
Assessment of Central Forms (Form – 9) under CST Act/
Rules in respect of Financial Year 2015-16.

1. As per Section 34 DVAT, 2004, limitation period for all kind of

Assessments is 4 years. Therefore, the limitation period of FY 2015-16
would expire on 31.03.2020. That means all pending cases are required to
be assessed by 31.03.2020, otherwise, they will become time barred and
it will cause loss of revenue to the Government.
N-89 LEGAL UPDATES 2020

2. The latest status of pending assessments in both categories are as

follows (ward wise sheet as provided by EDP branch is enclosed for ready
reference):-

S.No. Assessment Total cases in Assessments Pending

Type FY 15-16 completed Assessments on
date

1. Form 9 3,18,552.00 83,200.00 2,35,352.00

Assessments

2. 2A-2B mismatch 84,801 67,019 17,782

3. In view of the above, all Assessing Authorities/Ward Incharges

(ACs/AVATOs) are directed to take the matter of pending Assessments
very seriously and on top priority and to complete the pending Assessments
under both categories in accordance with the provisions of relevant Act/
Rules well before 31.03.2020. They must ensure that due proceedings
are undertaken within the limitation period. In case of failure to do so,
concerned Assessing Authority/Ward Incharges shall be personally
responsible for the loss of revenue if any to the Government Exchequer.

4. All Zonal Incharges are also requested to monitor the progress of

all the Assessing Authorities/Ward Incharges under their jurisdiction.

This issues with the prior approval of the Commissioner (T&T).

Sd/-
(Anand Kumar Tiwari)
Addl. Commissioner (Policy)

No. F.3(480)/Policy-VAT/2014/748-52 Dated: 03.03.2020

CIRCULAR NO. 01 OF 2020-21

Subject: Regarding Assessment orders under the CST Act, 1956 for
the year 2015-16.

It has been brought to notice that in some assessment cases pertaining

to the year 2015-16, FORM 9 containing the details of the Central Statutory
Forms stood filed by the dealers, however, the same has not been
considered by the assessing authority. This issue was also discussed with
the office bearers of STBA on 16/04/2020 wherein STBA representatives
N-90 DELHI SALES TAX CASES 2020

pointed to similar instances for example i) incorrect rate of tax was applied
while framing assessment, ii) in cases where Form 9 was partially filled the
assessing officer while framing the assessment did not take cognizance
of the central sale details that was already filed, iii) The assessing officer
did not allow the ITC claim and assessed the case on full GTO iv) Multiple
assessment orders were issued for the same period.

In this regard, the matter has been examined and in continuation to

this department’s previous circulars dated 19.03.2020 and 27.03.2020
and instructions on the above captioned subjected it is clarified that in
assessment cases pertaining to the year 2015-16, where FORM 9 has
not been considered or partly considered or more than one assessment
have been made, the Assessing Authorities are advised to exercise the
powers given to them under sub-section 5 of Section 74B i.e. either suo
motu or upon an application made in that behalf, review the assessment
or re-assessment made or order passed by such Assessing Authorities
under the DVAT Act, 2004 or exercise the power under other sub-sections
of section 74B to rectify the order as deemed fit.

It is further advised that all review applications of assessments

pertaining to 2015-16 and which have been issued during the period of
lockdown will be taken cognizance of and examined on merits. If any
additional document is required by the assessing authority to carry out the
review the same may be obtained by him through electronic means from
the dealer during the lockdown period.

The action to be taken with regard to multiple assessment orders for

the same period has already been clarified in detail vide circular dated
17.04.18 and 24.05.17.

The issues with the prior approval of Commissioner, VAT.

Sd/-
(Anand Kumar Tiwari)
Additional Commissioner (Policy)

No. F.3(636)/Policy/VAT/2016/777-82 Dated: 16.04.2020

CIRCULAR NO. 02 OF 2020-21

Assessment for tax period of 2015-16 under DVAT Act was completed
by all the officers by 31.03.2020.
N-91 LEGAL UPDATES 2020

The Sale Tax Bar Associations & other individuals have made
representations regarding some discrepancies in the assessment orders
made by AA for the year 2015-16. It has been requested that such orders
may be reviewed.

Section 74(B) read with rules 36(b) provides that the AA can review the
assessment or re-assessment made or order passed under DVAT, 2004,
suo-moto or an application made by the dealer in this behalf. The period
of submitting such application under sub rule 3 of rule 36(B) is prescribed
30 days.

After considering the various representations of Sales Tax Bar

Association and other individuals circular No. 01 of 2020 dated 16.04.2020,
after obtaining prior approval of Competent Authority, was issued by the
Additional Commissioner (Policy) of this officer in this regard.

However, Ministry of Home Affairs, Govt. of India vide order No. 3/2020
titled dated 23.03.2020 has issued guidelines for strict implementation of
lockdown for 21 days w.e.f 25.03.2020, the period of lockdown has been
further extended up 03.05.2020. The movement of public has also been
restricted during the period of lockdown. As a result of this lockdown,
the dealers may not be able to file review application within the time limit
prescribed.

Further attention is also drawn towards the order of Hon’ble Supreme

Court dated 23.03.2020 in Suo Moto petition (Civil) No. 3/2020 titled In
RE: Cognizance for Extension of Limitation wherein Hon’ble Supreme
Court has directed that period of limitation, whether condonable or not,
prescribed under the general law or special law, shall stand extended
w.e.f. 15.03.2020 till further orders to be passed by the Court in the matter
and this order is binding within the meaning of Article 141 on all Courts/
Tribunals and authorities.

In light of the above, all Assessing Authorities are advised to adhere

to the orders of Hon’ble Supreme Court while dealing with date of filing of
review applications.

Sd/-
(Vivek Mittal)
Asst. Commissioner (Policy)

No. F.3(636)/Public Policy/VAT/2016/791-97 Dated: 27.04.2020

N-92 DELHI SALES TAX CASES 2020

CIRCULAR NO. 03 OF 2020-21

1. World Health Organization (WHO) has declared the outbreak

of noval corona virus (COVID-19) as a Pandemic on 11.03.2020. In
order to combat COVID 19, Ministry of Home Affairs, Government of
India Vide order number 40-3-2020-DM-I(A) had issued a guidelines for
strict implementation for 21 days w.e.f. 25.03.2020. Ministry of Home
Affairs, Government of India vide order number 40-3-2020-DM-I(A) dated
14.04.2020 has extended the lockdown measures upto 03.05.2020, further
extended upto 17/5/2020. Delhi Disaster Management Authority also
issued orders and guidelines for effective implementation of the lockdown
measures from time to time.

2. Representations have been received for the exclusion of the period

of lockdown period for the purpose of computation of limitation under
various provisions of DVAT Act, 2004.

3. The matter has been examined and attention is drawn towards the
order of Hon’ble Supreme Court dated 23.03.2020 in Suo Moto Petition
(Civil) No. 3/2020 tilted in RE: Cognizance for Extension of Limitation
wherein Hon’ble Supreme Court, has directed that the period of limitation,
whether condonable or not, prescribed under the general law or special
laws, shall stand extended w.e.f. 15.03.2020 till further orders to be passed
by the Court in the matter and this order is binding within the meaning of
Article 141 on all Courts/Tribunals and authorities.

4. In light of the above, all assessing authority and objection hearing

authorities, designated under DVAT Act, 2004 are advised to adhere to
the orders of the Hon’ble Supreme Court while dealing with the limitation
period mentioned in the various provisions of the Delhi Value Added Tax
Act, 2004.

This issues with the approval of the Commissioner, VAT.

Sd/-
(Anand Kumar Tiwari)
Additional Commissioner (Policy)

No. F.3(636)/Policy/VAT/2016/798-805 Dated: 15.05.2020

N-93 LEGAL UPDATES 2020

Order Extending Lockdown upto 30.06.2020

Government of NCT of Delhi

Delhi Disaster Management Authority

No. F.2/07/2020/S.I/part file/212 Dated: dt 01.06.2020

ORDER

Whereas, the Delhi Disaster Management Authority (DDMA) is satisfied

that the NCT of Delhi is threatened with the spread of COVID-19 epidemic,
which has already been declared as a pandemic by the World Health
Organization, and has considered it necessary to take effective measures
to prevent its spread in NCT of Delhi;

And whereas, Delhi Disaster Management Authority has issued various

orders/instructions from time to time to all authorities concerned to take all
required measures to appropriately deal with the situation;

And whereas, Delhi Disaster Management Authority has issued Order No.
176 dated 18.05.2020 with regard to extension of lockdown till the midnight
of 31.05.2020, in pursuance of Ministry of Home Affairs, Govt. of India
Order No.40-3/2020-DM-I(A) dated 17th May 2020.

And whereas, Ministry of Home Affairs, Govt. of India, vide Order No.
40-3/2020-DM-I(A) dated 30.05.2020 annexed with guidelines for Phased
Re-opening (Unlock-I) as well as further DO letter No. 40-3/2020-DM-I(A)
dated 30.05.2020 (copy enclosed), has ordered to extend the lockdown in
Containment Zones upto 30.06.2020 and to re-open prohibited activities in
a phased manner in areas outside the Containment Zones.

Now, therefore, in exercise of powers conferred under section 22 of the

Disaster Management Act, 2005, the undersigned, in his capacity as
Chairperson, State Executive Committee, DDMA, GNCTD, hereby directs
as under:

a) The lockdown period in the Containment Zones in the territory of

NCT of Delhi is extended upto 30.06.2020. In the Containment
Zones, all actions should be taken strictly as per Clause-3&4 of
Annexed guidelines in letter and spirit by all authorities concerned.
The guidelines issued in this regard by Ministry of Health & Family
Welfare, Govt. of India as well as Department of H&FW, GNCTD
will be strictly implemented.
N-94 DELHI SALES TAX CASES 2020

b) In the areas of NCT of Delhi outside Containment Zones, the

permissible and prohibited activities w.e.f. 01.06.2020 shall be as
specified in the Annexure-A enclosed with this order.

c) All District Magistrates of Delhi and their counterpart District Deputy

Commissioners of Police shall ensure the strict enforcement of
these instructions and shall also adequately inform and sensitize
the field functionaries about these instructions for strict compliance,
in letter and spirit.

d) Pr. Secretary (I&P) shall ensure vide publicity and dissemination of

the instructions issued in this order and annexed guidelines to the
public for their knowledge and convenience.

All the Departments of GNCT of Delhi / Autonomous bodies/ PSUs /

Corporations / Local Bodies / Delhi Police shall ensure strict compliance
of this order as well as MHA Order dated 30.05.2020 along with annexed
guidelines and Annexures I & II.

(Vijay Dev)
Chief Secretary, Delhi

Annexure-A

1. The following activities will continue to remain prohibited

throughout the NCT of Delhi:

(i) Metro Rail Services

(ii) All schools, colleges, educational / training / coaching institutions

etc. will remain closed. Online / distance learning shall
continue to be permitted and shall be encouraged.

(iii) Hotels and other Hospitality services, except those meant

for housing health / police / Government officials / healthcare
workers / stranded persons including tourists and those used
for quarantine facilities; and running of canteens at bus depots,
railway stations and airports.

(iv) All cinema halls, shopping malls, gymnasiums, swimming

pools, entertainment parks, theatres, bars and auditoriums,
assembly halls and similar places.
N-95 LEGAL UPDATES 2020

(v) All social / political / sports / entertainment / academic / cultural

/religious functions / other gatherings and large congregations.

(vi) All religious places/places of worship shall be closed for public.

Religious congregations are strictly prohibited.

(vii) Spas

2. The following activities are permitted with restrictions as

specified. No permission is required from any authority for
undertaking the following permitted activities:

(i) Restaurants shall be permitted to operate kitchens for home

delivery & takeaway of food items.
(ii) Transportation by buses: Intra-State (within NCT of Delhi)
movement of buses (DTC as well as Cluster) shall be permitted
with the condition that not more than 20 passengers shall be
allowed at one time inside the bus. In the case of buses, boarding
shall be allowed only from the rear door while de-boarding shall
be allowed only from the front door. Before entering into the
bus, each passenger shall be screened through thermal gun
on ‘best effort’ basis. The Transport Department shall deploy
adequate number of bus marshals inside each bus at all times
for maintaining social distancing inside the bus and restricting
the number of passengers to 20.
Social distancing shall be ensured by Transport Department
at all bus stands / depots by deploying adequate number of
marshals.
(iii) The transportation of passengers, other than by buses, shall
also be allowed. After disembarkment of every passenger the
driver shall disinfect the passenger sitting area.
(iv) All Private Offices as well as Government Offices shall be
permitted to function in full strength. However, for private offices,
as far as possible the practice o work from home should be
followed.
(v) SHOPS AND MARKETS:
(a) All markets and market complexes shall remain open.

(b) Social distancing (2 Gaz ki doori) will be maintained in all

cases. If social distancing is not maintained by any shop,
N-96 DELHI SALES TAX CASES 2020

then the said shop shall be liable to be closed in view of

public health hazard involved in containing the spread of
COVID-19 pandemic and the shopkeeper shall also be
liable for prosecution under the relevant laws.
(vi) Industrial establishments shall be permitted to function.
(vii) Construction activities shall be permitted wherever the workers
are available on-site or could be transported to the site from
within the NCT of Delhi.
(viii) Marriage related gathering subject to social distancing (maximum
50 guests allowed)
(ix) Funeral / last rites related gathering subject to social distancing
(maximum 20 persons allowed.
(x) RWAs shall not prevent any person from performing their
services and duties which has been permitted under these
guidelines.

3. Containment Zones

(i) Lockdown shall continue to remain in force in the Containment

Zones till 30 June, 2020.

(ii) Containment Zones will be demarcated by the District authorities

after taking into consideration the guidelines of MoHFW.

(iii) In the Containment Zones, only essential activities shall be

allowed. There shall be strict perimeter control to ensure that
there is no movement of people in or out of these zones, except
for medical emergencies and for maintaining supply of essential
goods and services. In the Containment Zones, there shall be
intensive contact tracing, house-to-house surveillance, and other
clinical interventions, as required. Guidelines of MoHFW shall be
taken into consideration for the above purpose.

4. All other activities will be permitted, except those which are

specifically prohibited. However, in Containment Zones, only
essential activities shall be allowed.

5. Measures for well-being and safety of persons:

(i) The movement of individuals shall remain strictly prohibited

between 9.00 p.m. to 5.00 a.m., except for essential activities.
N-97 LEGAL UPDATES 2020

District authorities shall issue orders, in the entire area of their

jurisdiction, under appropriate provisions of law, such as under
Section 144 of CrPC, and ensure strict compliance.

(ii) Protection of vulnerable persons

Persons above 65 years of age, persons with co-morbidities,

pregnant women, and children below the age of 10 years are
advised to stay at home, except for essential and health purposes.

6. Unrestricted movement of persons and goods

(i) Movement of individuals and vehicles is allowed within the NCT of

Delhi. No separate permission/ approval/ e-permit will be required
for these movements.

(ii) In view of current public health situation in the NCT of Delhi, inter-
state movement of non-residents of Delhi, into the territory of
Delhi shall be allowed only on the production of e-passes issued
for essential services or in case of emergent circumstances, by
authorities of respective State/UT and / or District Magistrates of
NCT of Delhi. However, Government employees shall be allowed
on the production of Government ID card.

(iii) Movement by passenger trains and Shramik special trains;

domestic passenger air travel; movement of Indian Nationals
stranded outside the country and of specified persons to travel
abroad; evacuation of foreign nationals; and sign-on and sign-
off of Indian seafarers will continue to be regulated as per SOPs
issued.

(iv) No authorities of GNCT of Delhi and Delhi Police shall stop the
movement of any type of goods/ cargo for cross land-border trade
under Treaties with neighbouring countries.

7. National Directives for COVID-19 Management

National Directives for COVID-19 Management, as specified in

Annexure I, shall continue to be followed throughout the NCT of Delhi.

8. Use of Aarogya Setu

(i) Aarogya Setu enables early identification of potential risk of

infection, and thus acts as a shield for individuals and the
community.
N-98 DELHI SALES TAX CASES 2020

(ii) With a view to ensuring safety in offices and work places,

employers on best effort basis should ensure that Aarogya Setu
is installed by all employees having compatible mobile phones.
(iii) District authorities may advise individuals to install the Aarogya
Setu application on compatible mobile phones and regularly
update their health status on the app. This will facilitate timely
provision of medical attention to those individuals who are at risk.

9. Penal provisions
Any person violating these measures will be liable to be proceeded
against as per the provisions of Section 51 to 60 of the Disaster
Management Act, 2005, besides legal action under Section 188 of
the 1PC, and other legal provisions as applicable. Extracts of these
penal provisions are at Annexure II enclosed.

Order Directing that Guidelines for Phased Reopening (Unlock 1)

No. 40-3/2020-DM-I(A)
Government of India
Ministry of Home Affairs

North Block, New Delhi-110001

Dated 30th May, 2020

ORDER

Whereas, an Order of even number dated 17.05.2020 was issued for

containment of COVID-19 in the country, for a period upto 31.05.2020;

Whereas, in exercise of the powers under section 6(2)(i) of the Disaster

Management Act, 2005, National Disaster Management Authority (NDMA)
has directed the undersigned to issue an order to extend the lockdown in
Containment Zones upto 30.06.2020, and to re¬open prohibited activities
in a phased manner in areas outside Containment Zones;

Now therefore, in exercise of the powers, conferred under Section

10(2)(1) of the Disaster Management Act 2005, the undersigned hereby
directs that guidelines, as Annexed, will remain in force upto 30.06.2020.

Union Home Secretary

and, Chairman, National Executive Committee (NEC)
N-99 LEGAL UPDATES 2020

Guidelines for Phased Re-opening (Unlock 1)

lAs per Ministry of Home Affairs (MHA) Order No. 40-3/2020-DM-I (A)
dated 30’’ May, 2020]

1. Phased re-opening of areas outside the Containment Zones

In areas outside Containment Zones, all activities will be permitted,

except the following, which will be allowed, with the stipulation of
following Standard Operating Procedures (SOPs) to be prescribed
by the Ministry of Health and Family Welfare (MoHFW), in a phased
manner:

Phase 1

The following activities will be allowed with effect from 8 June, 2020:

(i) Religious places/ places of worship for public.

(ii) Hotels, restaurants and other hospitality services.

(iii) Shopping malls.

Ministry of Health & Family Welfare (MoHFW) will issue Standard Operating
Procedures (SOPs) for the above activities, in consultation with the Central
Ministries/ Departments concerned and other stakeholders, for ensuring
social distancing and to contain the spread of COVID-19.

Phase II

Schools, colleges, educational/ training/ coaching institutions etc., will be

opened after consultations with States and UTs. State Governments/ UT
administrations may hold consultations at the institution level with parents
and other stakeholders. Based on the feedback, a decision on the re-
opening of these institutions will be taken in the month of July, 2020.

MoHFW will prepare SOP in this regard, in consultation with the Central
Ministries/Departments concerned and other stakeholders, for ensuring
social distancing and to contain the spread of COVID-19.

Phase III

Based on the assessment of the situation, dates for re-starting the following
activities will be decided:
N-100 DELHI SALES TAX CASES 2020

(i) International air travel of passengers, except as permitted by

MHA.

(ii) Metro Rail.

(iii) Cinema halls, gymnasiums, swimming pools, entertainment

parks, theatres, bars and auditoriums, assembly halls and similar
places.

(iv) Social/ political/ sports/ entertainment/ academic/ cultural/

religious functions and other large congregations.

2. National Directives for COVID-19 Management

National Directives for COVID-19 Management, as specified in

Annexure I, shall continue to be followed throughout the country.

3. Night curfew

Movement of individuals shall remain strictly prohibited between

9.00 pm to 5.00 am throughout the country, except for essential
activities. Local authorities shall issue orders, in the entire area of
their jurisdiction, under appropriate provisions of law, such as under
Section 144 of CrPC, and ensure strict complianCe.

4. Lockdown limited to Containment Zones

(i) Lockdown shall continue to remain in force in the Containment

Zones till 30 June, 2020.

(ii) Containment Zones will be demarcated by the District authorities

after taking into consideration the guidelines of MoHFW.

(iii) In the Containment Zones, only essential activities shall be

allowed. There shall be strict perimeter control to ensure that
there is no movement of people in or out of these zones, except
for medical emergencies and for maintaining supply of essential
goods and services. In the Containment Zones, there shall be
intensive contact tracing, house-to-house surveillance, and other
clinical interventions, as required. Guidelines of MoHFW shall be
taken into consideration for the above purpose.

(iv) States/ UTs may also identify Buffer Zones outside the
Containment Zones, where new cases are more likely to occur.
N-101 LEGAL UPDATES 2020

Within the buffer zones, restrictions as considered necessary

may be put in place by the District authorities.

5. States/ UTs, based on their assessment of the situation, may

prohibit certain activities outside the Containment zones, or
impose such restrictions as deemed necessary.

6. Unrestricted movement of persons and goods

(i) There shall be no restriction on inter-State and intra-State

movement of persons and goods. No separate permission/
approval/ e-permit will be required for such movements.
(ii) However, if a State/ UT, based on reasons of public health and
its assessment of the situation, proposes to regulate movement
of persons, it will give wide publicity in advance regarding the
restrictions to be placed on such movement, and the related
procedures to be followed.
(iii) Movement by passenger trains and Shramik special trains;
domestic passenger air travel; movement of Indian Nationals
stranded outside the country and of specified persons to travel
abroad; evacuation of foreign nationals; and sign-on and sign-
off of Indian seafarers will continue to be regulated as per SOPs
issued.
(iv) No State/ UT shall stop the movement of any type of goods/ cargo
for cross land-border trade under Treaties with neighbouring
countries.

7. Protection of vulnerable persons

Persons above 65 years of age, persons with co-morbidities, pregnant
women, and children below the age of 10 years are advised to stay at
home, except for essential and health purposes.

8. Use of Aarogya Setu

(i) Aarogya Setu enables early identification of potential risk of

infection, and thus acts as a shield for individuals and the
community.

(ii) With a view to ensuring safety in offices and work places,

employers on best effort basis should ensure that Aarol,Tya Setu
is installed by all employees having compatible mobile phones.
N-102 DELHI SALES TAX CASES 2020

(iii) District authorities may advise individuals to install the Aarogya

Setu application on compatible mobile phones and regularly
update their health status on the app. This will facilitate timely
provision of medical attention to those individuals who are at risk.

9. Strict enforcement of the guidelines

(i) State/ UT Governments shall not dilute these guidelines issued

under the Disaster Management Act, 2005, in any manner.

(ii) All the District Magistrates shall strictly enforce the above
measures.

10. Penal provisions

Any person violating these measures will be liable to be proceeded

against as per the provisions of Section 51 to 60 of the Disaster
Management Act, 2005, besides legal action under Section188 of the
IPC, and other legal provisions as applicable. Extracts of these penal
provisions are at Annexure II.
Union Home Secretary
and, Chairman, National Executive Committee

Annexure I

National Directives for COVID-19 Management

1. Face coverings: Wearing of face cover is compulsory in public

places; in workplaces; and during transport.
2. Social distancing: Individuals must maintain a minimum distance
of 6 feet (2 gaz ki doori) in public places. Shops will ensure physical
distancing among customers and will not allow more than 5 persons
at one time.
3. Gatherings: Large public gatherings/ congregations continue to
remain prohibited.
Marriage related gatherings : Number of guests
not to exceed 50.

Funeral/ last rites related gatherings : Number of persons

not to exceed 20.
N-103 LEGAL UPDATES 2020

4. Spitting in public places will be punishable with fine, as may be

prescribed by the State/UT local authority in accordance with its laws,
rules or regulations.

5. Consumption of liquor, paan, gutka, tobacco etc.in public places

is prohibited.

Additional directives for Work Places

6. Work from home (WfH): As far as possible the practice of WfH

should be followed.

7. Staggering of work/ business hours will be followed in offices, work

places, shops, markets and industrial & commercial establishments.

8. Screening & hygiene: Provision for thermal scanning, hand wash

and sanitizer will be made at all entry and exit points and common
areas.

9. Frequent sanitization of entire workplace, common facilities and all

points which come into human contact e.g. door handles etc., will be
ensured, including between shifts.

10. Social distancing: All persons in charge of work places will ensure
adequate distance between workers, adequate gaps between shifts,
staggering the lunch breaks of staff, etc.

Annexure lI

Offences and Penalties for Violation of Lockdown Measures

Section 51 to 60 of the Disaster Management Act, 2005

51. Punishment for obstruction, etc.—Whoever, without reasonable

cause —

(a) obstructs any officer or employee of the Central Government

or the State Government, or a person authorised by the
National Authority or State Authority or District Authority in
the discharge of his functions under this Act; or
N-104 DELHI SALES TAX CASES 2020

(b) refuses to comply with any direction given by or on behalf

of the Central Government or the State Government or
the National Executive Committee or the State Executive
Committee or the District Authority under this Act,

shall on conviction be punishable with imprisonment for a term

which may extend to one year or with fine, or with both, and if such
obstruction or refusal to comply with directions results in loss of lives
or imminent danger thereof, shall on conviction be punishable with
imprisonment for a term which may extend to two years.

52. Punishment for false claim.—Whoever knowingly makes a

claim which he knows or has reason to believe to be false for
obtaining any relief, assistance, repair, reconstruction or other
benefits consequent to disaster from any officer of the Central
Government, the State Government, the National Authority, the
State Authority or the District Authority, shall, on conviction be
punishable with imprisonment for a term which may extend to two
years, and also with fine.

53. Punishment for misappropriation of money or materials,

etc.—Whoever, being entrusted with any money or materials,
or otherwise being, in custody of, or dominion over, any money
or goods, meant for providing relief in any threatening disaster
situation or disaster, misappropriates or appropriates for his own
use or disposes of such money or materials or any part thereof or
wilfully compels any other person so to do, shall on conviction be
punishable with imprisonment for a term which may extend to two
years, and also with fine.

54. Punishment for false warning.—Whoever makes or circulates

a false alarm or warning as to disaster or its severity or
magnitude, leading to panic, shall on conviction, be punishable
with imprisonment which may extend to one year or with fine.

55. Offences by Departments of the Government.—(1) Where an

offence under this Act has been committed by any Department of
the Government, the head of the Department shall be deemed to
be guilty of the offence and shall be liable to be proceeded against
and punished accordingly unless he proves that the offence was
committed without his knowledge or that he exercised all due
diligence to prevent the commission of such offence.
N-105 LEGAL UPDATES 2020

(2) Notwithstanding anything contained in sub-section (1), where

an offence under this Act has been committed by a Department
of the Government 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 officer, other than the head of
the Department, such officer shall be deemed to be guilty of that
offence and shall be liable to be proceeded against and punished
accordingly.

56. Failure of officer in duty or his connivance at the contravention

of the provisions of this Act.—Any officer, on whom any duty
has been imposed by or under this Act and who ceases or refuses
to perform or withdraws himself from the duties of his office
shall, unless he has obtained the express written permission of
his official superior or has other lawful excuse for so doing, be
punishable with imprisonment for a term which may extend to one
year or with fine.

57. Penalty for contravention of any order regarding

requisitioning.—If any person contravenes any order made
under section 65, he shall be punishable with imprisonment for a
ten-n which may extend to one year or with fine or with both.

58. Offence by companies.—(1) Where an offence under this Act

has been committed by a company or body corporate, 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 contravention and shall be liable to be
proceeded against and punished accordingly:

Provided that nothing 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 due diligence to prevent the commission of such
offence.

(2) Notwithstanding anything contained in. sub-section (1), where an

offence under this Act has been committed by a company, and
it is proved that the offence was 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
N-106 DELHI SALES TAX CASES 2020

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 anybody corporate and includes a firm or

other association of individuals; and

(b) “director”, in relation to a firm, means a partner in the firm.

59. Previous sanction for prosecution.—No prosecution for offences

punishable under sections 55 and 56 shall be instituted except
with the previous sanction of the Central Government or the State
Government, as the case may be, or of any officer authorised in
this behalf, by general or special order, by such Government.

60. Cognizance of offences.—No court shall take cognizance of an

offence under this Act except on a complaint made by—

(a) the National Authority, the State Authority, the Central

Government, the State Government, the District Authority or
any other authority or officer authorised in this behalf by that
Authority or Government, as the case may be; or

(b) any person who has given notice of not less than thirty
days in the manner prescribed, of the alleged offence and
his intention to make a complaint to the National Authority,
the State Authority, the Central Government, the State
Government, the District Authority or any other authority or
officer authorised as aforesaid.

B. Section 188 in the Indian Penal Code, 1860

188. Disobedience to order duly promulgated by public servant.—

Whoever, knowing that, by an order promulgated by a public servant
lawfully empowered to promulgate stich order, he is directed to abstain
from a certain act, or to take certain order with certain property in his
possession or under his management, disobeys such direction, shall, if
such disobedience causes or tends to cause obstruction, annoyance or
injury, or risk of obstruction, annoyance or injury, to any person lawfully
employed, be punished with simple imprisonment for a term which may
extend to one month or with fine which may extend to two hundred rupees,
or with both; and if such disobedience causes or trends to cause danger
N-107 LEGAL UPDATES 2020

to human life, health or safety, or causes or tends to cause a riot or affray,

shall be punished with imprisonment of either description for a term which
may extend to six months, or with fine which may extend to one thousand
rupees, or with both.

Explanation.—It is not necessary that the offender should intend to

produce harm, or contemplate his disobedience as likely to produce
harm. It is sufficient that he knows of the order which he disobeys,
and that his disobedience produces, or is likely to produce, harm.

Illustration

An order is promulgated by a public servant lawfully empowered to

promulgate such order, directing that a religious procession shall
not pass down a certain street. A knowingly disobeys the order,
and thereby causes danger of riot. A has committed the offence
defined in this section.
N-108 DELHI SALES TAX CASES 2020

Video Conferencing Rules

High Court of Delhi: New Delhi

NOTIFICATION

No. 325 /Rules/DHC Dated: 01.06.2020

VIDEO CONFERENCING RULES

Preface

Whereas it is expedient to consolidate, unify and streamline the

procedure relating to the use of video conferencing for Courts; and

In exercise of its powers under Articles 225 and 227 of the Constitution
of India, the High Court of Delhi makes the following Rules.

Chapter I – Preliminary

1. These Rules shall be called the “High Court of Delhi Rules for
Video Conferencing for Courts 2020".

(i) These Rules shall apply to such courts or proceedings or classes

of courts or proceedings and on and from such date as the High
Court may notify in this behalf.

2. Definitions

In these Rules, unless the context otherwise requires:

(i) "Advocate" means and includes an advocate entered in any roll

maintained under the provisions of the Advocates Act, 1961 and
shall also include government pleaders/advocates and officers of
the department of prosecution.

(ii) "Commissioner" means a person appointed as commissioner

under the provisions of Code of Civil Procedure, 1908 (CPC), or
the Code of Criminal Procedure, 1973 (CrPC), or any other law in
force.

(iii) "Coordinator" means a person nominated as coordinator under

Rule 5.
N-109 LEGAL UPDATES 2020

(iv) "Court" includes a physical Court and a virtual Court or tribunal.

(v) "Court Point" means the Courtroom or one or more places
where the Court is physically convened, or the place where a
Commissioner or an inquiring officer holds proceedings under the
directions of the Court.
(vi) “Court User” means a user participating in Court proceedings
through video conferencing at a Court Point.
(vii) “Designated Video Conferencing Software” means software
provided by the High Court from time to time to conduct video
conferencing.
(viii) “Exceptional circumstances” include illustratively a pandemic,
natural calamities, circumstances implicating law and order and
matters relating to the safety of the accused and witnesses.
(ix) “Live Link” means and includes a live television link, audio-video
electronic means or other arrangements whereby a witness, a
required person or any other person permitted to remain present,
while physically absent from the Courtroom is nevertheless
virtually present in the Courtroom by remote communication
using technology to give evidence and be cross-examined.
(x) “Remote Point” is a place where any person or persons are
required to be present or appear through a video link.
(xi) “Remote User” means a user participating in Court proceedings
through video conferencing at a Remote Point.

(xii) “Required Person” includes:

a. the person who is to be examined; or

b. the person in whose presence certain proceedings are to be

recorded or conducted; or

c. an Advocate or a party in person who intends to examine a

witness; or

d. any person who is required to make submissions before the

Court; or

e. any other person who is permitted by the Court to appear

through video conferencing.
N-110 DELHI SALES TAX CASES 2020

(xiii) “Rules” shall mean these Rules for Video Conferencing for Courts
and any reference to a Rule, Sub-Rule or Schedule shall be a
reference to a Rule, Sub-Rule or Schedule of these Rules.

Chapter II - General Principles

3. General Principles Governing Video Conferencing

(i) Video conferencing facilities may be used at all stages of judicial

proceedings and proceedings conducted by the Court.
(ii) All proceedings conducted by a Court via video conferencing
shall be judicial proceedings and all the courtesies and protocols
applicable to a physical Court shall apply to these virtual
proceedings. The protocol provided in Schedule I shall be adhered
to for proceedings conducted by way of video conferencing.
(iii) All relevant statutory provisions applicable to judicial proceedings
including provisions of the CPC, CrPC, Contempt of Courts Act,
1971, Indian Evidence Act, 1872 (Evidence Act), and Information
Technology Act, 2000 (IT Act), shall apply to proceedings
conducted by video conferencing.
(iv) Subject to maintaining independence, impartiality and credibility
of judicial proceedings, and subject to such directions as the High
Court may issue, Courts may adopt such technological advances
as may become available from time to time.
(v) The Rules as applicable to a Court shall mutatis mutandis apply to
a Commissioner appointed by the Court to record evidence and
to an inquiry officer conducting an inquiry.
(vi) There shall be no unauthorised recording of the proceedings by
any person or entity.
(vii) The person defined in Rule 2(xii) shall provide identity proof as
recognised by the Government of India/State Government/Union
Territory to the Court point coordinator via personal email. In case
of identity proof not being readily available the person concerned
shall furnish the following personal details: name, parentage and
permanent address, as also, temporary address if any.

4. Facilities recommended for Video Conferencing

The following equipment is recommended for conducting proceedings

by video conferencing at the Court Point and the Remote Point:
N-111 LEGAL UPDATES 2020

(i) Desktop, Laptop, mobile devices with internet connectivity and

printer;
(ii) Device ensuring uninterrupted power supply;
(iii) Camera;
(iv) Microphones and speakers;
(v) Display unit;
(vi) Document visualizer;
(vii) Provision of a firewall;
(viii) Adequate seating arrangements ensuring privacy;
(ix) Adequate lighting; and
(x) Availability of a quiet and secure space

5. Preparatory Arrangements

5.1 There shall be a Coordinator both at the Court Point and at the
Remote Point from which any Required Person is to be examined
or heard. However, Coordinator may be required at the Remote
Point only when a witness or a person accused of an offence is to
be examined.

5.2 In the civil and criminal Courts falling within the purview of
the district judiciary, persons nominated by the High Court or
the concerned District Judge, shall perform the functions of
Coordinators at the Court Point as well as the Remote Point as
provided in Rule 5.3.

5.3 The Coordinator at the Remote Point may be any of the following:

Sub Rule Where the Advocate or The Remote Point Coordinator

Required Person is at the shall be:-
following Remote Point:-

5.3.1 Overseas An official of an Indian Consulate /

the relevant Indian Embassy / the
relevant High Commission of India

5.3.2 Court of another state or union Any authorized official nominated

territory of India by the concerned District Judge

5.3.3 Mediation Centre or office of Any authorized person / official

District Legal Services Authority nominated by the Chairperson
or Secretary of the concerned
District Legal Services Authority.
N-112 DELHI SALES TAX CASES 2020

5.3.4 Jail or prison The concerned Jail Superintendent

or Officer- in-charge of the prison.

5.3.5 Hospitals administered by the Medical Superintendent or an

Central Government, the State official authorized by them or
Government or local bodies the person in charge of the said
hospital

5.3.6 Observation Home, Special The Superintendent or Officer in

Home, Children’s Home, Shelter charge of that child facility or an
Home, or any institution referred official authorized by them.
to as a child facility (collectively
referred to as child facilities) and
where the Required Person is a
juvenile or a child or a person who
is an inmate of such child facility.

5.3.7 Women’s Rescue Homes, The Superintendent or Officer-in-

Protection Homes, Shelter charge of the women’s facility or
Homes, Nari Niketans or any an official authorized by them.
institution referred to as a women’s
facility (collectively referred to as
women’s facilities).

5.3.8 In custody, care or employment The Superintendent or Officer-in-

of any other government office, charge of the institutional facility
organization or institution or an official authorized by them.
(collectively referred to as
institutional facilities).

5.3.9 Forensic Science Lab The Administrative officer-in-

charge or their nominee.

5.3.10 In case of any other location The concerned Court may appoint
any person deemed fit and
proper who is ready and willing to
render services as a Coordinator
to ensure that the proceedings
are conducted in a fair, impartial
and independent manner and
according to the directions issued
by the Court in that behalf.

5.3.11 Notwithstanding the provisions of Clause 5.3.1, where wit-

ness examination is to take place in a criminal case of a
person located outside the country, the provisions of the
“Comprehensive Guidelines for investigation abroad and
issue of Letters Rogatory (LRs) / Mutual Legal Assistance
(MLA) Request and Service of Summons / Notices/ Judi-
cial documents in respect of Criminal Matters” (available at
N-113 LEGAL UPDATES 2020

http://164.100.117.97/WriteReadData/userfiles/ISII_Com-
prehensiveGuidelinesMutualLegalAssistance_17122019.
pdf) will be followed to the extent they comport with the
provisions of the CrPC and the Evidence Act. Furthermore,
before the Court employs its discretion to carry out witness
examination via video conference, it will obtain the consent
of the accused.

5.4 When a Required Person is at any of the Remote Points mentioned

in Sub Rule 5.3 and video conferencing facilities are not available
at any of these places the concerned Court will formally request
the District Judge, in whose jurisdiction the Remote Point is
situated to appoint a Coordinator for and to provide a video
conferencing facility from proximate and suitable Court premises.

5.5 The Coordinators at both the Court Point and Remote Point shall
ensure that the recommended requirements set out in Rule 4 are
complied with so that the proceedings are conducted seamlessly.

5.6 The Coordinator at the Remote Point shall ensure that:

5.6.1 All Advocates and/or Required Persons scheduled to

appear in a particular proceeding are ready at the Remote
Point designated for video conferencing at least 30 minutes
before the scheduled time.

5.6.2 No unauthorised recording device is used.

5.6.3 No unauthorised person enters the video conference room

when the video conference is in progress.

5.6.4 The person being examined is not prompted, tutored,

coaxed, induced or coerced in any manner by any person
and that the person being examined does not refer to any
document, script or device without the permission of the
concerned Court during the examination.

5.7 Where the witness to be examined through video conferencing

requires or if it is otherwise expedient to do so, the Court shall
give sufficient notice in advance, setting out the schedule of
video conferencing and, in appropriate cases may transmit non-
editable digital scanned copies of all or any part of the record of the
proceedings to the official email account of the Coordinator of the
concerned Remote Point designated under Rule 5.3.
N-114 DELHI SALES TAX CASES 2020

5.8 Before the scheduled video conferencing date, the Coordinator at

the Court Point shall ensure that the Coordinator at the Remote
Point receives certified copies, printouts or a soft copy of the
non-editable scanned copies of all or any part of the record of
proceedings which may be required for recording statements or
evidence, or for reference. However, these shall be permitted to be
used by the Required Person only with the permission of the Court.

5.9 Whenever required the Court shall order the Coordinator at the
Remote Point or at the Court Point to provide -

5.9.1 A translator in case the person to be examined is not

conversant with the official language of the Court.

5.9.2 An expert in sign languages in case the person to be

examined is impaired in speech and/or hearing.

5.9.3 An interpreter or a special educator, as the case may be,

in case a person to be examined is differently-abled, either
temporarily or permanently.

Chapter III - Procedure for Video Conferencing

6. Application for Appearance, Evidence and Submission by

Video Conferencing:

6.1 Any party to the proceeding or witness, save and except where
proceedings are initiated at the instance of the Court, may move
a request for video conferencing. A party or witness seeking a
video conferencing proceeding shall do so by making a request
via the form prescribed in Schedule II.

6.2 Any proposal to move a request for video conferencing should

first be discussed with the other party or parties to the proceeding,
except where it is not possible or inappropriate, for example in
cases such as urgent applications.

6.3 On receipt of such a request and upon hearing all concerned

persons, the Court will pass an appropriate order after ascertaining
that the application is not filed to impede a fair trial or to delay the
proceedings.

6.4 While allowing a request for video conferencing, the Court may
also fix the schedule for convening the video conferencing.
N-115 LEGAL UPDATES 2020

6.5 In case the video conferencing event is convened for making

oral submissions, the order may require the Advocate or party
in person to submit written arguments and precedents, if any, in
advance on the official email ID of the concerned Court.

6.6 Costs, if directed to be paid, shall be deposited within the

prescribed time, commencing from the date on which the order
convening proceedings through video conferencing is received.

7. Service of Summons

7.1 Summons issued to a witness who is to be examined through

video conferencing, shall mention the date, time and venue
of the concerned Remote Point and shall direct the witness to
attend in person along with proof of identity or an affidavit to that
effect. The existing rules regarding service of the summons and
the consequences for non-attendance, as provided in the CPC
and CrPC shall apply to service of summons for proceedings
conducted by video conferencing.
7.2 Furthermore in respect of service of summons on witnesses re-
siding outside the country, concerning criminal matters, the provi-
sions of “Comprehensive Guidelines for investigation abroad and
issue of Letters Rogatory (LRs) / Mutual Legal Assistance (MLA)
Request and Service of Summons / Notices/ Judicial documents
in respect of Criminal Matters” (available at http://164.100.117.97/
WriteReadData/userfiles/ISII_ComprehensiveGuidelinesMutu-
alLegalAssistance_17122019.pdf) will be followed to the extent
they comport with the provisions of the CrPC and the extant laws.
8. Examination of persons

8.1 Any person being examined, including a witness shall, before

being examined through video conferencing, produce and file
proof of identity by submitting an identity document issued or
duly recognized by the Government of India, State Government,
Union Territory, or in the absence of such a document, an affidavit
attested by any of the authorities referred to in Section 139 of
the CPC or Section 297 of the CrPC, as the case may be. The
affidavit will inter alia state that the person, who is shown to be the
party to the proceedings or as a witness, is the same person, who
is to depose at the virtual hearing. A copy of the proof of identity
or affidavit, as the case may be, will be made available to the
opposite party.
N-116 DELHI SALES TAX CASES 2020

8.2 The person being examined will ordinarily be examined during

the working hours of the concerned Court or at such time as the
Court may deem fit. The oath will be administered to the person
being examined by the Coordinator at the Court Point.

8.3 Where the person being examined, or the accused to be tried, is

in custody, the statement or, as the case may be, the testimony,
may be recorded through video conferencing. The Court shall
provide adequate opportunity to the under-trial prisoner to consult
in privacy with their counsel before, during and after the video
conferencing.

8.4 Subject to the provisions for the examination of witnesses

contained in the Evidence Act, before the examination of the
witness, the documents, if any, sought to be relied upon shall be
transmitted by the applicant to the witness, so that the witness
acquires familiarity with the said documents. The applicant will file
an acknowledgement with the Court in this behalf.

8.5 If a person is examined concerning a particular document then

the summons to witness must be accompanied by a duly certified
photocopy of the document. The original document should be
exhibited at the Court Point as per the deposition of the concerned
person being examined.

8.6 The Court would be at liberty to record the demeanour of the

person being examined.

8.7 The Court will note the objections raised during the deposition of
the person being examined and rule on them.

8.8 The Court shall obtain the signature of the person being examined
on the transcript once the examination is concluded. The signed
transcript will form part of the record of the judicial proceedings.
The signature on the transcript of the person being examined
shall be obtained in either of the following ways:

8.8.1 If digital signatures are available at both the concerned

Court Point and Remote Point, the soft copy of the
transcript digitally signed by the presiding Judge at the
Court Point shall be sent by the official e-mail to the
Remote Point where a print out of the same will be taken
and signed by the person being examined. A scanned copy
N-117 LEGAL UPDATES 2020

of the transcript digitally signed by the Coordinator at the

Remote Point would be transmitted by official email to the
Court Point. The hard copy of the signed transcript will be
dispatched after the testimony is over, preferably within
three days by the Coordinator at the Remote Point to the
Court Point by recognised courier/registered speed post.

8.8.2 If digital signatures are not available, the printout of the

transcript shall be signed by the presiding Judge and the
representative of the parties, if any, at the Court Point and
shall be sent in non-editable scanned format to the official
email account of the Remote Point, where a printout of the
same will be taken and signed by the person examined
and countersigned by the Coordinator at the Remote Point.
A non-editable scanned format of the transcript so signed
shall be sent by the Coordinator of the Remote Point to the
official email account of the Court Point, where a print out
of the same will be taken and shall be made a part of the
judicial record. The hard copy would also be dispatched
preferably within three days by the Coordinator at the
Remote Point to the Court Point by recognised courier/
registered speed post.

8.9 An audio-visual recording of the examination of the person

examined shall be preserved. An encrypted master copy with
hash value shall be retained as a part of the record.

8.10 The Court may, at the request of a person to be examined, or

on its own motion, taking into account the best interests of the
person to be examined, direct appropriate measures to protect
the privacy of the person examined bearing in mind aspects such
as age, gender, physical condition and recognized customs and
practices.

8.11 The Coordinator at the Remote Point shall ensure that no person
is present at the Remote Point, save and except the person being
examined and those whose presence is deemed administratively
necessary by the Coordinator for the proceedings to continue.

8.12 The Court may also impose such other conditions as are
necessary for a given set of facts for effective recording of the
examination (especially to ensure compliance with Rule 5.6.4).
N-118 DELHI SALES TAX CASES 2020

8.13 The examination shall, as far as practicable, proceed without

interruption or the grant of unnecessary adjournments. However,
the Court or the Commissioner as the case may be will be at
liberty to determine whether an adjournment should be granted,
and if so, on what terms.

8.14 The Court shall be guided by the provisions of the CPC and
Chapter XXIII, Part B of the CrPC, the Evidence Act and the IT
Act while examining a person through video conferencing.

8.15 Where a Required Person is not capable of reaching the Court

Point or the Remote Point due to sickness or physical infirmity,
or presence of the required person cannot be secured without
undue delay or expense, the Court may authorize the conduct
of video conferencing from the place at which such person is
located. In such circumstances, the Court may direct the use
of portable video conferencing systems. Authority in this behalf
may be given to the concerned Coordinator and/or any person
deemed fit by the Court.

8.16 Subject to such orders as the Court may pass, in case any
party or person authorized by the party is desirous of being
physically present at the Remote Point at the time of recording
of the testimony, such a party shall make its arrangement for
appearance /representation at the Remote Point.

9. Exhibiting or Showing Documents to Witness or Accused at a

Remote Point

If in the course of examination of a person at a Remote Point by video

conferencing, it is necessary to show a document to the person, the Court
may permit the document to be shown in the following manner:

9.1 If the document is at the Court Point, by transmitting a copy

or image of the document to the Remote Point electronically,
including through a document visualizer; or

9.2 If the document is at the Remote Point, by putting it to the person

and transmitting a copy/image of the same to the Court Point
electronically including through a document visualizer. The hard
copy of the document countersigned by the witness and the
Coordinator at the Remote Point shall be dispatched thereafter to
the Court Point via authorized courier/registered speed post.
N-119 LEGAL UPDATES 2020

10. Ensuring seamless video conferencing

10.1 The Advocate or Required Person, shall address the Court by

video conferencing from a specified Remote Point on the date
and time specified in the order issued by the Court. The presence
of the coordinator will not be necessary at the Remote point
where arguments are to be addressed by an advocate or party in
person before the Court.

10.2 If the proceedings are carried out from any of the Remote Point(s)
(in situations described in Rules 5.3.1 to 5.3.9) the Coordinator
at such Remote Point shall ensure compliance of all technical
requirements. However, if the proceedings are conducted from
a Remote Point falling in the situation contemplated under Rule
5.3.10, such as an Advocate’s office, the Coordinator at the Court
Point shall ensure compliance of all technical requirements for
conducting video conferencing at both the Court Point and the
Remote Point.

10.3 The Coordinator at the Court Point shall be in contact with the
concerned Advocate or the Required Person and guide them
regarding the fulfilment of technical and other requirements for
executing a successful hearing through video conferencing. Any
problems faced by such Remote Users shall be resolved by the
Court Point Coordinator. The Court Point Coordinator shall inter
alia share the link of the video conferencing hearing with such
Remote Users.
10.4 The Coordinator at the Court Point shall ensure that any
document or audio-visual files, emailed by the Remote User, are
duly received at the Court Point.

10.5 The Coordinator at the Court Point shall also conduct a trial
video conferencing, preferably 30 minutes before scheduled
video conferencing to ensure that all the technical systems are in
working condition at both the Court Point and the Remote Point.

10.6 At the scheduled time, the Coordinator at the Court Point shall
connect the Remote User to the Court.

10.7 On completion of the video conferencing proceeding, the Court

shall mention in the order sheet the time and duration of the
proceeding, the software used (in case the software used is not
the Designated Video Conferencing Software), the issue(s) on
which the Court was addressed and the documents if any that
N-120 DELHI SALES TAX CASES 2020

were produced and transmitted online. In case a digital recording

is tendered, the Court shall record its duration in the order sheet
along with all other requisite details.
10.8 The Court shall also record its satisfaction as to clarity, sound and
connectivity for both Court Users and Remote Users.
10.9 On the completion of video conferencing, if a Remote User
believes that she/he were prejudiced due to poor video and/
or audio quality, the Remote User shall immediately inform the
Coordinator at the Court Point, who shall, in turn, communicate
this information to the Court without any delay. The Court shall
consider the grievance and if it finds substance in the grievance
may declare the hearing to be incomplete and the parties may be
asked to re-connect or make a physical appearance in Court.

11. Judicial remand, the framing of charge, the examination of

accused and Proceedings under Section 164 of the CrPC

11.1 The Court may, at its discretion, authorize the detention of an

accused, frame charges in a criminal trial under the CrPC by
video conferencing. However, ordinarily judicial remand in the
first instance or police remand shall not be granted through video
conferencing save and except in exceptional circumstances for
reasons to be recorded in writing.

11.2 The Court may, in exceptional circumstances, for reasons to

be recorded in writing, examine a witness or an accused under
Section 164 of the CrPC or record the statement of the accused
under Section 313 CrPC through video conferencing, while
observing all due precautions to ensure that the witness or the
accused as the case may be is free of any form of coercion, threat
or undue influence. The Court shall ensure compliance with
Section 26 of the Evidence Act.

Chapter IV - General Procedure

12. General procedure

12.1 The procedure set out hereafter in this chapter is without

prejudice to the procedure indicated elsewhere in these Rules
qua specific instances in which proceedings are conducted via
video conferencing.
N-121 LEGAL UPDATES 2020

12.2 The Coordinator at the Court Point shall ensure that video
conferencing is conducted only through a Designated Video
Conferencing Software. However, in the event of a technical
glitch during a given proceeding, the concerned Court may for
reasons to be recorded permit the use of software other than the
Designated Video Conferencing Software for video conferencing
in that particular proceeding.

12.3 The identity of the person to be examined shall be confirmed by

the Court with the assistance of the Coordinator at the Remote
Point as per Rule 8.1, at the time of recording of the evidence and
the same must be reflected in the order sheet of the Court.

12.4 In civil cases, parties requesting for recording statements of the

person to be examined by video conferencing shall confirm to the
Court, the location of the person, the willingness of such person
to be examined through video conferencing and the availability of
technical facilities for video conferencing at the agreed-upon time
and place.

12.5 In criminal cases, where the person to be examined is a

prosecution witness or a Court witness, or where a person to be
examined is a defence witness, the counsel for the prosecution or
defence counsel, as the case may be, shall confirm to the Court
the location of the person, willingness to be examined by video
conferencing and the time, place and technical facility for such
video conferencing.

12.6 In case the person to be examined is an accused, the prosecution

will confirm the location of the accused at the Remote Point.

12.7 Video conferencing shall ordinarily take place during the

Court hours. However, the Court may pass suitable directions
concerning the timing and schedule of video conferencing as the
circumstances may warrant.

12.8 If the accused is in custody and not present at the Court Point, the
Court will order a multi-point video conference between itself, the
witness and the accused in custody to facilitate the recording of
the statement of the witness (including medical or other experts).
The Court shall ensure that the defence of the accused is not
prejudiced in any manner and that the safeguards contained in
Rule 8.3 are observed.
N-122 DELHI SALES TAX CASES 2020

12.9 The Coordinator at the Remote Point shall be paid such amount
as honorarium as may be directed by the Court in consultation
with the parties.

13. Costs of Video Conferencing

In the absence of rules prescribed by the concerned Court, the Court

may take into consideration the following circumstances when determining
and/or apportioning the costs of video conferencing:

13.1 In criminal cases, the expenses of the video conferencing facility

including expenses involved in preparing soft copies / certified
copies of the Court record and transmitting the same to the
Coordinator at the Remote Point, and the fee payable to the
translator / interpreter / special educator, as the case may be, as
also the fee payable to the Coordinator at the Remote Point, shall
be borne by such party as directed by the Court.

13.2 In civil cases, generally, the party requesting for recording

evidence through video conferencing shall bear the expenses.

13.3 Besides the above, the Court may also make an order as to
expenses as it considers appropriate, taking into account the rules
/ instructions regarding payment of expenses to the complainant
and witnesses, as may be prevalent from time to time.

13.4 It shall be open to the Court to waive the costs as warranted in a

given situation.

14. Conduct of Proceedings

14.1 All Advocates, Required Persons, the party in person and/or any
other person permitted by the Court to remain physically or virtually
present (hereinafter collectively referred to as participants) shall
abide by the requirements set out in Schedule I.

14.2 Before the commencement of video conferencing all participants,

shall have their presence recorded. However, in case a participant
is desirous that their face or name be masked, information to that
effect will be furnished to the Court Point Coordinator before the
commencement of the proceeding.

14.3 The Court Point Coordinator shall send the link / Meeting ID /
Room Details via the email Id / mobile number furnished by the
N-123 LEGAL UPDATES 2020

Advocate or Required Person or other participant permitted to

be virtually present by the Court. Once the proceedings have
commenced, no other persons will be permitted to participate in
the virtual hearing, save and except with the permission of the
Court.

14.4 The participants, after joining the hearing shall remain in the virtual
lobby if available, until they are admitted to the virtual hearing by
the Coordinator at the Court Point.

14.5 Participation in the proceedings shall constitute consent by

the participants to the proceedings being recorded by video
conferencing.

14.6 Establishment and disconnection of links between the Court Point

and the Remote Point would be regulated by orders of the Court.

14.7 The Court shall satisfy itself that the Advocate, Required Person
or any other participant that the Court deems necessary at the
Remote Point or the Court Point can be seen and heard clearly
and can see and hear the Court.

14.8 To ensure that video conferencing is conducted seamlessly, the

difficulties, if any, experienced in connectivity must be brought to
the notice of the Court at the earliest on the official email address
and mobile number of the Court Point Coordinator which has
been furnished to the participant before the commencement of the
virtual hearing. No complaint shall subsequently be entertained.

14.9 Wherever any proceeding is carried out by the Court under

these Rules by taking recourse to video conferencing, this shall
specifically be mentioned in the order sheet.

15. Access to Legal Aid Clinics/Camps/Lok Adalats/Jail Adalats

15.1 In conformity with the provisions of the Legal Services Authorities

Act, 1987 and the laws in force, in proceedings related to Legal
Aid Clinics, Camps, Lok Adalats or Jail Adalats, any person who
at the Remote Point is in Jail or Prison shall be examined by the
Chairman / Secretary of the District Legal Service Authority or
Members of Lok Adalats before passing any award or orders as
per law.

15.2 Such award or order shall have the same force as if it was passed
by the regular Lok Adalat or Jail Adalat.
N-124 DELHI SALES TAX CASES 2020

15.3 Copy of the award or order and the record of proceedings shall be
sent to the Remote Point.

16. Allowing persons who are not parties to the case to view the
proceedings

16.1 To observe the requirement of an open Court proceeding, members

of the public will be allowed to view Court hearings conducted
through video conferencing, except proceedings ordered for
reasons recorded in writing to be conducted in-camera. The Court
shall endeavour to make available sufficient links (consistent with
available bandwidth) for accessing the proceedings.

16.2 Where, for any reason, a person unconnected with the case is
present at the Remote Point, that person shall be identified by the
Coordinator at the Remote Point at the start of the proceedings
and the purpose of the presence of that person shall be conveyed
to the Court. Such a person shall continue to remain present only
if ordered so by the Court.

Chapter V – Miscellaneous

17. Reference to Words and Expressions

Words and expressions used and not defined in these Rules shall have
the same meaning as assigned to them in the CPC, the CrPC, Evidence
Act, IT Act, and the General Clauses Act, 1897.

18. Power to Relax

The High Court may if satisfied that the operation of any Rule is causing
undue hardship, by order dispense with or relax the requirements of that
Rule to such extent and subject to such conditions, as may be stipulated to
deal with the case in a just and equitable manner.

19. Residual Provisions

Matters concerning which no express provision has been made in

these Rules shall be decided by the Court consistent with the principle of
furthering the interests of justice.
N-125 LEGAL UPDATES 2020

SCHEDULE I

1. All participants shall wear sober attire consistent with the dignity of the
proceedings. Advocates shall be appropriately dressed in professional
attire prescribed under the Advocates Act, 1961. Police officials shall
appear in the uniform prescribed for police officials under the relevant
statute or orders. The attire for judicial officers and court staff will be
as specified in the relevant rules prescribed in that behalf by the High
Court. The decision of the Presiding Judge or officer as to the dress
code will be final.

2. Proceedings shall be conducted at the appointed date and time.

Punctuality shall be scrupulously observed.

3. The case will be called out and appearances shall be recorded on the
direction of the Court.

4. Every participant shall adhere to the courtesies and protocol that are
followed in a physical Court. Judges will be addressed as “Madam/
Sir” or “Your Honour”. Officers will be addressed by their designation
such as “Bench Officer/Court Master”. Advocates will be addressed
as “Learned Counsel/Senior Counsel”

5. Advocates, Required Persons, parties in person and other participants

shall keep their microphones muted till they are called upon to make
submissions.

6. Remote Users shall ensure that their devices are free from malware.

7. Remote Users and the Coordinator at the Remote Point shall ensure
that the Remote Point is situated in a quiet location, is properly
secured and has sufficient internet coverage. Any unwarranted
disturbance caused during video conferencing may if the Presiding
Judge so directs render the proceedings non-est.

8. All participants’ cell phones shall remain switched off or in aeroplane

mode during the proceedings.

9. All participants should endeavour to look into the camera, remain

attentive and not engage in any other activity during the proceedings.
N-126 DELHI SALES TAX CASES 2020

SCHEDULE II
Request Form for Video Conference

1. Case Number / CNR Number (if any)....................................................................

2. Cause Title.............................................................................................................
3. Proposed Date of conference (DD/MM/YYYY):.....................................................
4. Location of the Court Point(s):...............................................................................
5. Location of the Remote Point(s):...........................................................................
6. Names & Designation of the Participants at the Remote Point:
...............................................................................................................................
7. Reasons for Video Conferencing:
In the matter of:
8. Nature of Proceedings: Final Hearing  Motion Hearing 
Others 

I have read and understood the provisions of Rules for Video Conferencing
for Courts (hyperlink). I undertake to remain bound by the same to the extent
applicable to me. I agree to pay video conferencing charges if so, directed by
the Court.

Signature of the applicant/authorised signatory:

Date:

For use of the Registry / Court Point Coordinator

A) Bench assigned:
B) Hearing:
Held on    (DD/MM/YYYY):    Commencement Time:
End time:
Number of hours:
C) Costs:
Overseas transmission charges if any:
To be Incurred by Applicant /Respondent:
To be shared equally:
Waived; as ordered by the Court:

Signature of the authorised officer:

Date:

BY ORDER
Sd/-
(MANOJ JAIN)
REGISTRAR GENERAL
A-115 TRANSITIONAL INPUT TAX CREDIT 2020

Transitional Input Tax Credit – Judicial Encounter

Ravi Chandhok, Advocate

Background

The Goods & Services Tax legislations (“the GST Laws”) are biggest
tax reforms in independent India. With introduction of the GST Laws,
Governments, both State and the Centre, intends to achieve various
objectives viz. ‘ease of doing business’, ‘make in india’, etc. It is vision of
the present Government at the Centre that the GST Laws would help bring
in more investment in the country, which will boost employment and would
ultimately lead to strengthening the economy.

During various meetings between the Government and the

industry regarding investments, foremost suggestion by the industry
was tax reform. The Government was informed that major challenge
in doing business in India was separate tax laws in each State and
non-adjustment of input tax credit (“ITC”) among tax laws. Under the
erstwhile, Central Excise, Services Tax and Value Added Tax, laws
(“the Earlier Laws”), ITC of taxes paid under the Central Excise,
Service Tax were not allowed to be set-off against the ValueAdded Tax Laws and
vice-a-versa. Due to which businesses ended up paying taxes on taxes,
which ultimately lead to rise in price of goods/ services.

The GST Laws have been implemented with the view to eradicate
cascading effect of indirect taxes and to overcome multiple compliances
under different tax laws prevailed during the Earlier Laws. Objective of
laying off burden of multiple compliance obligations has been achieved.
However, with so much litigation and reluctant attitude of the Government
wrt allowing benefit of transitional ITC on naïve issues is a hurdle in race to
achieve other objective of overcoming cascading effect of taxes.

As per Section 140 of the GST Laws, for claiming ITC of taxes paid on
transitional stock, claimant assessee was required to furnish information
of the same in form TRAN – 1. Rule 117 of the Goods and Services Tax
Rules (“the GST Rules”) prescribed time within which TRAN – 1was
required to be filed online on portal of Goods and Services Tax Network
(“GSTN”). However, certain assessees due to varied reasons ranging
from technical glitch to lack of knowledge of using online services, could
not file TRAN – 1 within prescribed time. Considering technical glitch in
GSTN, Rule 117(1A) was inserted in the GST Rules, which empowered
A-116 DELHI SALES TAX CASES 2020

the Commissioner of Goods and Services Tax to extend limitation for filing
TRAN – 1 for persons who could not file the same due to technical glitch.
However, no relief was given to assessees who did not have proof of
having faced technical glitch at the time of filing TRAN – 1 within limitation
prescribed under Rule 117 of the GST Rules. The said assessees have
been denied benefit of transitional ITC. To seek remedy, the assessees
approached different High Courts, which allowed belated filing of TRAN
– 1. The petitions were allowed by considering various factors associated
with claiming transitional ITC. One of the common flaws in the GST Laws
wrt transitional ITC pointed by some of High Courts is that though Rule
117 of the GST Rules prescribe time limit for filing TRAN – 1, Section
140 of the GST Laws does not empower the Government to frame
such Rule. Such shortcoming in the GST Laws was already noticed by
the Government and modification of Section 140 thereof to empower
the Government to frame corresponding Rule was mentioned in the
Finance Act, 2020 (“the Finance Act”) to be applicable retrospectively
whenever the same is notified. Considering judgments of High Courts
against the Government, provision of the Finance Act relating to Section
140 has been notified on May 18, 2020. As per amended Section 140 of
the GST Laws, to claim benefit of transitional ITC, TRAN – 1 form was
required to be filed within time prescribed under Rule 117 of the GST Rules.

On the transitional stock, claimant assesses have paid taxes under

the Earlier Laws, ITC of which is being claimed now. The said ITC has
been duly reflected by the claimants in last return filed under the Earlier
Laws. Dis-allowance of ITC on transitional stock on account of procedural
lapse of non-filing of form TRAN – 1, would lead to only one thing ‘double
taxation’.

Issues

Issue 1: Whether assessees who failed to submit form TRAN – 1

within the time prescribed in Rule 117 of the GST Rules are
entitle to transitional ITC?

Issue 2: Whether retrospective amendment of Section 140 of the GST

Laws would negate judgments of High Courts allowing the
assessees to file TRAN – 1?

Legal analysis

Assessees who have been denied benefit of transitional ITC due to

non-filing of TRAN – 1, have been knocking doors of different High Courts.
While noticing hardships of the claimant assessees and turmoil GSTN has
A-117 TRANSITIONAL INPUT TAX CREDIT 2020

created wrt filing of TRAN – 1 (since this article relates to transitional ITC)
the Government was directed to open the portal to allow assessees to file
TRAN – 1.

Some of the judicial pronouncements important for forming an opinion

on the issues mentioned above are discussed below:

A. Judgments allowing belated claim of transitional ITC

1. Adfert Technologies Pvt. Ltd. Vs. UOI [CWP No. 30949 of

2018 (P&H)] {“the Adfert Case”} – SLP dismissed

While interpreting entitlement granted under Section 140 of the

GST Laws, limitation prescribed in Rule 117 of the GST Rules
has also been considered and following principles have been laid
down:

• The Petitioners were duly registered under the Earlier Laws

and Authorities have complete record of unutilized ITC. Thus,
department has no authority to deny credit on technical or procedural
grounds.

• Restricting ITC on goods and services purchased in pre-GST

regime within time prescribed in Rule 117 of the GST Rules
vis-à-vis ITC on the same purchased after July 1, 2017 i.e. upto
date on which return for September of following financial
year is required to be filed, is discriminatory and violative of
Article 14 of the Constitution of India (“the Constitution”).

• Dis-allowing vested right (ITC) to an assessee registered under the

Earlier Laws who complied with all provisions thereof is offensive
against Article 14 of the Constitution as it goes against the essence
of doctrine of legitimate expectation.

• Dis-allowing transitional ITC may severely dent working capital

and diminish ability to continue business. Such action violates
mandate of Article 19(1)(g) of the Constitution.

• Liability to pay GST on supply of transitional stock without

corresponding ITC would lead to double taxation on the same
subject matter and, therefore, is arbitrary and irrational.

• C.B.E. & C. Flyer No.20, dated January 1, 2018 had clarified

as under:
A-118 DELHI SALES TAX CASES 2020

“It is not the intention of the Government to collect tax twice on

the same goods. Hence, in such cases, it has been provided
that the credit of the duty/tax paid earlier would be admissible
as credit.”

• ITC earned under the Earlier Laws is property of claimant assessees,

which can’t be appropriated. If appropriated would be violative of
Article 300A of the Constitution.

2. Brand Equity Treaties Limited Vs. UOI [W.P.(C) 11040/2018 (Del.)]

{“Brand Equity Case”}

The following principles have been laid down:

• Recognition of technical glitches in GSTN in Rule 117(1A) of the GST
Rules and extensions of filing of TRAN – 1 demonstrates that Authorities
were aware about non-filing of TRAN – 1 due to technical glitches. The
said fact substantiates that period for filing TRAN – 1 is not considered –
either by the legislature, or the executive as sacrosanct or mandatory.
• Section 140 permits carry forward of transitional ITC, which presupposes
that the same has therefore accrued.
• Transitional ITC in every sense stood accumulated, acquired and vested
on the appointed date as the same was reflected in credit register in the
previous regime
• There are no provisions under the GST Laws, which completely restricts
carry forward of transitional ITC in GST regime by a particular date, and
there is no rationale for curtailing the said period, except under the law of
limitations.
• Benefit of extended period for filing TRAN – 1 only to taxpayers whose
cases are covered by “technical difficulties on common portal”, is
arbitrary, vague and unreasonable
• Technical difficulties would include the same faced by or on part of
Authorities and the taxpayers as well.
• Procedural law is not to be a tyrant but a servant, not an obstruction but
an aid to justice.

Important points:

Hon’ble P&H High Court in the Adfert Case took a broader view while
allowing benefit of transitional ITC to assessees. The hon’ble High Court
A-119 TRANSITIONAL INPUT TAX CREDIT 2020

has travelled beyond nuanced approach whether in absence of specific

power under Section 140 of the GST laws wrt framing of corresponding
Rule 117 of the GST Rules, limitation prescribed thereof are mandatory or
directory. It has been held that when claim of transitional ITC was a vested
right granted under the Earlier Laws, the same could not be taken away
due to procedural lapse of non-filing of TRAN – 1.

Judgment in the Adfert Case was challenged before the hon’ble

Supreme Court vide SLP (C) No. No.4408/2020, which has been dismissed.
Accordingly, principle laid down and entitlement granted in the Adfert Case
has become law of land.

Further hon’ble Delhi High Court in the Brand Equity Case while
acknowledging view in the Adfert Case has held that in the absence of
mandatory nature of limitation in the GST Laws for claiming transitional
ITC, general law of limitation prescribed under the limitation Act 1963, i.e.
three years shall apply.

B. Judgments on ITC under the Earlier Laws

1. Jayam & Co. Vs. Assistant Commissioner [2018 (19) G.S.T.L.

3 (S.C.)] {“the Jayam Case”}

Vires of Section 19(20) of the Tamil Nadu Value Added Tax Act, 2006
(“the Tamil Nadu VAT Act”), which required reversal of ITC
where goods are sold at a price lesser than purchase value was
challenged. Further insertion of the said Section with retrospective
effect was also challenged. The hon’ble Supreme Court while
upholding insertion of Section 19(20) to the Tamil Nadu VAT Act
held that ITC granted under a legislation is a concession, which is
available when you satisfy conditions attached to the same.

However, the hon’ble Supreme Court struck down retrospective

amendment to Section 19(20) of the Tamil Nadu VAT Act for the reason
that it takes away vested right of the concerned dealers. It has been held
that dealers’ eligibility to claim full ITC of taxes paid on purchase price
before coming into force of Section 19(20) of the Tamil Nadu VAT Act is
a vested right, which cannot be taken away by retrospective amendment.
Relevant extracts are reproduced below:

“The manner of calculation of the ITC was entirely different

before this amendment in the example, which has been given
by us in the earlier part of the judgment, ‘dealer’ was entitled to
A-120 DELHI SALES TAX CASES 2020

ITC of Rs. 10/- on re-sale, which was paid by the dealer as VAT
while purchasing the goods from the vendors. However, in view
of Section 19(20) inserted by way of amendment, he would now
be entitled to ITC of Rs. 9.50. This is clearly a provision which
is made for the first time to the detriment of the dealers. Such
a provision, therefore, cannot have retrospective effect, more
so, when vested right had accrued in favour of these dealers
in respect of purchases and sales made between January
1, 2007 to August 19, 2010. Thus, while upholding the vires of
sub-section (20) of Section 19, we set aside and strike down
Amendment Act 22 of 2010 whereby this amendment was given
retrospective effect from January 1, 2007.”

2. ALD Automotive Pvt. Ltd. Vs. CTO 2018 (364) E.L.T. 3 (S.C.)
{“the ALD Case”}

Section 19(11) of the Tamil Nadu VAT Act provided that ITC of
tax paid on purchases could be claimed within ninety days of
purchase or by end of financial year, whichever is later. The
petitioners challenged validity of the same on the ground that
vested right of claiming ITC cannot be curtailed and fettered by
an unreasonable restriction imposed under Section 19(11) of the
Tamil Nadu VAT Act. The hon’ble Court while upholding validity
of Section 19(11) of the Tamil Nadu VAT Act held that ‘input
credit is in nature of benefit/concession extended to dealer under
the statutory scheme. The concession can be received by the
beneficiary only as per the scheme of the Statute.’.

3. EICHER MOTORS LTD. Vs. UOI 1999 (106) E.L.T. 3 (S.C.)

Rule 57F(4A) was inserted in the Central Excise Rules, 1944

(“the Excise Rules”), vide which ITC lying unutilised as on March
16, 1995 with the manufacturers, stood lapsed. The said Rule
was challenged. Hon’ble Supreme Court held that Rule 57F(4A)
of the Excise Rules could not be made applicable to goods
manufactured prior to March 16, 1995 for the following reasons:

“We may look at the matter from another angle. If on the inputs
the assessee had already paid the taxes on the basis that when
the goods are utilised in the manufacture of further products as
inputs thereto then the tax on these goods gets adjusted which are
finished subsequently. Thus a right accrued to the assessee on
the date when they paid the tax on the raw materials or the inputs
A-121 TRANSITIONAL INPUT TAX CREDIT 2020

and that right would continue until the facility available thereto gets
worked out or until those goods existed.”

Important points:

The pertinent point to notice in above cases, is that hon’ble Supreme

Court termed ITC as concession when the same could be claimed after
satisfying conditions laid down in respective legislation. However, it has
been held that when ITC has been claimed by fulfilling conditions prescribed
under law, the same becomes a vested right. It has been very categorically
held by hon’ble Supreme Court in the Jayam Case that vested right of ITC
cannot be taken away by bringing retrospective amendment to provision
which entitled a dealer to claim ITC.

Conclusion

It is true that controversy wrt belated claim of transitional ITC would be

put to rest by hon’ble Supreme Court. However, judicial pronouncements
discussed above definitely help us to form an opinion on the issues, which
are responded below:

Issue 1: Whether assessees who failed to submit form TRAN – 1

within the time prescribed in Rule 117 of the GST Rules are
entitle to transitional ITC?

Response 1: Hon’ble High Courts in the Adfert Case, the Brand Equity
Case and other similar judgments have held that transitional
ITC is vested right of the assessees claiming the same.
The said vested right accrued after satisfying conditions
laid down in the Earlier Laws. Further revenue already had
information about said ITC brought forward from the Earlier
Laws since the same was duly reflected in last returns filed
thereunder. The Revenue had and still has the opportunity
to verify claims of transitional ITC. Further controversy wrt
denial of substantive rights due to procedural lapses has
also been put to rest by hon’ble Supreme Court in many
judicial pronouncements, which have been discussed and
followed by High Courts in judgments mentioned above.

The above aspects have been elaborately discussed and decided by

hon’ble Punjab & Haryana High Court in the Adfert Case. Special Leave
Petition filed against the Adfert Case has also been dismissed. Accordingly,
entitlement of transitional ITC, though belated, should not be denied.
A-122 DELHI SALES TAX CASES 2020

Further transitional ITC is the amount of tax paid on purchases made by

claimant assessees. The said amount was paid on the assurance given under
the Earlier Laws that ITC of the same would be allowed. Due to the said nature,
amount of transitional ITC becomes property of the claimant assessees
lying unutilised with the Revenue Authorities. As per Article 300A of
the Constitution, the claimant assessees cannot be deprived of their property
i.e. the unutilised transitional ITC. Similar proposition has been laid down in
the Adfert Case and the Brand Equity Case.

It would also not be out of place to mention that denial of transitional ITC
would defeat the very purpose of implementation of GST i.e. eradicating
cascading effect of taxes. In addition, the industry would also lose faith in
the Government, which would hit other pillar of GST i.e. investment.

Issue 2: Whether retrospective amendment of Section 140 of the

GST Laws would negate judgments of High Courts allowing
the assessees to file TRAN – 1?

Response 2: Amendment to Section 140 of the GST Laws has been

brought in to overcome alleged flaw in language of the
same. For instance, in the Brand Equity Case, one of the
reasons for allowing belated claim of transitional ITC is that
Section 140 of the GST Laws does not empower Rule 117
of the GST Rules to prescribe time for the same.

However, it is important to notice that Hon’ble Punjab & Haryana

High Court in the Adfert Case has, irrespective of language of Section
140 of the GST Laws, considered limitation prescribed under Rule
117 of the GST Rules as time for submitting form TRAN – 1. The
petitioners therein have been allowed to file belated TRAN – 1
primarily for the reason that it was a vested right information for
which was available with the Revenue Authorities. SLP filed against
the Adfert Case has been dismissed by the hon’ble Supreme Court.
Consequently, it may be concluded that effect, which amendment to
Section 140 of the GST Laws has brought, has already been considered
by the hon’ble Supreme Court while dismissing SLP filed against the Adfert
Case.

Further, going with principle laid down by hon’ble Supreme Court in

the Jayam Case and the Eicher Case, a vested right cannot be taken away
by retrospective amendment of a provision, which entitled an assessee for
claiming ITC.