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Kangale and Company Vs. the Commercial Tax Officer (int.), Ii Northern Zone, Belgaum and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKarnataka High Court
Decided On
Case NumberWrit Petition No. 5424 of 1977
Judge
Reported in[1978]41STC296(Kar)
ActsKarnataka Sales Tax Act, 1957 - Sections 28(3)
AppellantKangale and Company
RespondentThe Commercial Tax Officer (int.), Ii Northern Zone, Belgaum and anr.
Appellant AdvocateW.K. Joshi, Adv.
Respondent AdvocateP.G. Gowri, High Court Government Pleader
Excerpt:
.....is required to be compensated. in the light of the facts and circumstances of the case, the compensation rs.75,000/- was granted. - this is clearly not a purpose for the seizure envisaged in section 28(3) of the act.ordersrinivasa iyengar, j. 1. in this writ petition the seizure of certain records and account books of the petitioners which is a partnership firm carrying on business in cocoanuts at ravivarpet, belgaum, by the first respondent and the continued retention of those books and records is challenged. the main prayer is for a direction to the first respondent to return the said records and account books and the notes if any made by the first respondent from out of the said books and also for a writ of prohibition directing respondent-1 not to make use of the notes if any made by him. 2. no counter has been filed on behalf of the respondents. the seizure was on 23rd april, 1977. it transpires that thereafter certain notices and summons were issued to the petitioners as per exhibits b and c.....
Judgment:
ORDER

Srinivasa Iyengar, J.

1. In this writ petition the seizure of certain records and account books of the petitioners which is a partnership firm carrying on business in cocoanuts at Ravivarpet, Belgaum, by the first respondent and the continued retention of those books and records is challenged. The main prayer is for a direction to the first respondent to return the said records and account books and the notes if any made by the first respondent from out of the said books and also for a writ of prohibition directing respondent-1 not to make use of the notes if any made by him.

2. No counter has been filed on behalf of the respondents. The seizure was on 23rd April, 1977. It transpires that thereafter certain notices and summons were issued to the petitioners as per exhibits B and C dated 27th April, 1977, and 12th May, 1977. It also transpires that the Deputy Commissioner of Commercial Taxes (respondent-2) permitted the first respondent to retain the seized books up to and inclusive of 21st July, 1977, by a communication, exhibit D, dated 16th June, 1977. It is submitted on behalf of the petitioners that the period of retention of the books is being extended and till now the books have not been returned. The main argument advanced by Sri W. K. Joshi is that the seizure order, exhibit A, dated 23rd April, 1977, is contrary to the requirements of section 28(3) of the Karnataka Sales Tax Act, 1957. The relevant portion of the said section is as follows :

'If any such officer has reason to suspect that any dealer is attempting to evade the payment of any tax, fee or other amount due from him under this Act, he may, for reasons to be recorded in writing, seize such accounts, registers, records or other documents of the dealers as he may consider necessary, and shall give the dealer a receipt for the same. The amounts, registers, records and documents so seized shall be retained by such officer only for so long as may be necessary for their examination and for any inquiry or proceeding under this Act : Provided that such accounts, registers, records and documents shall not be retained for more than thirty days at a time except with the permission of the next higher authority.'

In the order exhibit A, the officer has not stated that he has reason to suspect that the petitioner was attempting to evade payment of any tax, fee or other amount due from him under the Act. The order is as follows :

'I visited and inspected the business premises of M/s. M. S. Kangale and Company, Cocoanut Merchants, Ravivarpet, Belgaum, along with C.T.O., Intelligence II, and C.T.I. of this office. The partner was present. Shri M. S. Kangale has produced the books of account and documents on my request for inspection. The cocoanuts of 26 bags received from Calicut on 23rd August, 1976, have been duly accounted on 26th August, 1976, in kird page No. 373. The regular day-book for the Saka year 1976-77 has been written up to 20th April, 1977. I have signed the same on page 269. I have also signed the cash book written up to 22nd April, 1977, and the kird, cash and credit sales bills.

In the course of my inspection I noticed a rough cash book and its corresponding khata for the accounting year 1976-77. On verification with the regular books of account, it is notified that the credit sales recorded in the books of account have been shown as cash sales. The personal accounts of purchases could not be explained by the partner present with reference to regular books of account. Whether first purchasers in the State have paid the tax on these transactions is to be ascertained for the purpose of this investigation and consider it necessary to seize the following books of account and documents .........'

It is clear from this order that far from suspecting that the petitioner was attempting to evade payment of any tax, fee or other amount due from it under the Act, the purpose appears to be to find out if any first purchasers in the State had paid the tax. It is clear that the idea was to explore whether third parties had conformed to the Act or paid the taxes due by them. This is clearly not a purpose for the seizure envisaged in section 28(3) of the Act. The notices, exhibits B and C, also do not give any idea that there was any suspicion against the petitioners as such in regard to the payment of any tax by them. From the facts stated above it is clear that the seizure was unwarranted and the retention of the books and records seized under exhibit A is contrary to law.

3. Accordingly, a writ shall issued to the respondents to return the books and record seized under exhibit A and also the notes, if any, made by the first respondent from the said books and accounts within 15 days from today. Parties shall, however, bear their own costs.

4. Petition allowed.


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