Skip to content


Neminath Brothers Vs. the Commercial Tax Officer (intelligence) Iv, North Zone, Belgaum - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKarnataka High Court
Decided On
Case NumberWrit Petition No. 3914 of 1978
Judge
Reported in1980(2)KarLJ21; [1980]45STC490(Kar)
ActsKarnataka Sales Tax Act, 1957 - Sections 28(3)
AppellantNeminath Brothers
RespondentThe Commercial Tax Officer (intelligence) Iv, North Zone, Belgaum
Advocates:B.P. Gandhi, Adv.
Excerpt:
.....1977 disposed of on 23rd march, 1978) this court observed that if the reasons are not recorded on the basis of which an officer comes to entertain suspicion that the person is attempting to evade the tax, then the seizure would be bad being country to section 28(3). it was also observed that it is not sufficient for the officer simply to state that on a preliminary scrutiny of the books of account and documents, he has reason to suspect that the dealer is trying to evade the tax payable by him. but i may state that the reasons to be recorded under section 28(3) need not always be the reasons to substantiate one's suspicion that the dealer is attempting to evade the payment of any tax, and it may well be the reason as to the relevancy of the documents which he intends to seize for the..........whose business premises were searched by the respondent and in the course of which some books of account, documents and other papers were seized. the validity of the search and seizure has been called into question. 2. the petitioner-firm is a registered dealer under the karnataka sales tax act, 1957, and also under the central sales tax act. on 2nd february, 1978, at about 4.00 p.m., the respondent along with several other officers raided the premises of the petitioner. the search was authorised by a warrant issued by the judicial magistrate, first class, iii court, belgaum, who has stated in his order that he has reason to believe that the petitioner was in possession of incriminating documents or accounts and they could not be secured by summons or requisitions. 3. the respondent.....
Judgment:
ORDER

Jagannatha Shetty, J.

1. This petition under article 226 of the Constitution is by a registered firm whose business premises were searched by the respondent and in the course of which some books of account, documents and other papers were seized. The validity of the search and seizure has been called into question.

2. The petitioner-firm is a registered dealer under the Karnataka Sales Tax Act, 1957, and also under the Central Sales Tax Act. On 2nd February, 1978, at about 4.00 P.M., the respondent along with several other officers raided the premises of the petitioner. The search was authorised by a warrant issued by the Judicial Magistrate, First Class, III Court, Belgaum, who has stated in his order that he has reason to believe that the petitioner was in possession of incriminating documents or accounts and they could not be secured by summons or requisitions.

3. The respondent was an officer of the Intelligence Wing but not a jurisdictional assessing authority of the petitioner. It is alleged by the petitioner that the respondent had absolutely no material to make any allegations regarding evasion of tax and the belief entertained by him was without foundation. It is also alleged that the respondent arbitrarily searched not only the business premises of the petitioner but also the residential premises and seized whatever was found lying in the premises irrespective of any relevancy or usefulness to the belief entertained by him. It is further alleged that he has not recorded any reason before seizing the documents, books of account, etc. In the course of seizure, it is said that the respondent not only seized the books of account of the petitioner, but also those belonging to another assessee, that is, Padma Industries Engineering Company, in respect of which the respondent was not authorised to search the premises.

4. This petition was filed as far back as 9th March, 1978, and in spite of the due service of notice to the respondent, it is regrettable to note that the respondent remains unrepresented. When rule is issued by this Court, it is expected that the respondent should come forward with a return. It is unfortunate that even after the lapse of almost two years, none enters appearance for the respondent.

5. However, the absence of the respondent does not lighten the burden of the petitioner to prove the illegality of the search and seizure. But I must say in fairness to Mr. Gandhi, that he usefully assisted the court in reaching a correct conclusion without of course sacrificing the interests of his client. He confined his arguments only on the legality of the seizure. He urged that it was totally in disregard of the mandatory provisions of section 28(3) of the Karnataka Sales Tax Act, 1957 (hereinafter referred to as 'the Act').

6. Let me now examine the contention in detail. The power to search and seize accounts, registers or other documents of a dealer is located under sub-section (3) of section 28 of the Act. It provides as follows :

'28. (3) 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 dealer as he may consider necessary, and shall give the dealer a receipt for the same. The accounts, 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 sixty days at a time except with the permission of the next higher authority.'

Under the sub-section, the empowered officer must have reasons to suspect that any dealer is attempting to evade the payment of any tax, fee or other amount due from him under the Act. Then, he may, for reasons to be recorded, seizes such accounts, registers, etc., as he may consider necessary, and shall give the dealer a receipt for the same. The accounts, registers, etc., so seized shall be retained by such officer so long as may be necessary for their examination and for any enquiry or proceeding under the Act. The validity of a similar provision has been upheld by the Supreme Court in Commissioner of Commercial Taxes v. Ramkishan Shrikishan Jhaver : [1967]66ITR664(SC) , on the ground that there are enough safeguards provided by the legislature in connection with the search and seizure and such a provision is necessary in the taxation laws in order that evasion may be checked. One of the safeguards provided under the sub-section is that an officer cannot seize accounts, registers, records or other documents of the dealer unless he records his reasons.

The contention urged in the present case was that the respondent has not recorded his reasons for his conclusion or opinion that the documents which he seized were necessary to prove the evasion of tax, and he went on seizing whatever was found lying on the premises irrespective of any consideration whether they were relevant or useful for any enquiry or proceeding under the Act. The seizure was thus characterised as arbitrary and illegal.

7. In order to appreciate the contention, we may have a glance at the mahazar prepared by the respondent and the reason if any given by him. The relevant extract of the mahazar runs as follows :

'Statement of mahazar in the presence of witnesses today the 2nd February, 1978, at the business-cum-residential premises of M/s. Neminath Brothers, No. 2223, Kacherigalli, Shahapur, Belgaum.

Search list

In execution of the warrant of search issued by the Judicial Magistrate, First Class, Court III, Belgaum, in Misc. Case No. 20 of 1978 dated 2-2-1978, authorising Sri M. A. NAWAB, Commercial Tax Officer (Intelligence) IV, North Zone, Belgaum, to conduct search of the business-cum-residential premises of M/s. Neminath Brothers, Door No. 2223, Kacherigalli, Shahapur, Belgaum, the search was made in our presence and also in the presence of the occupant of the aforesaid premises Shri BAPU APPARAO CHIVATE, one of the partners of the said firm M/w. Neminath Brothers. During the search the following books of account and documents as of incriminating in nature under the Karnataka Sales Tax Act, 1957, were found in the places mentioned against each :

------------------------------------------------------------------------ Sl. Description No. of books Places in the Attested No. of the books documents residential-cum-business at page of account premises where found No. and documents ------------------------------------------------------------------------ 1 2 3 4 5 ------------------------------------------------------------------------ I Belonging to business of M/s. NEMINATH BROTHERS and PADMA INDUSTRIES ENGINEERING Co., BELGAUM. 1. Roj rajkhird 1 Book Officer room 81 (Day-book) ground floor relating to 1977-78 (D.Y.) 2 to 17 * * * * (Total items above are seventeen)

The abovesaid books of account and documents were seized in our presence.'

It is seen from the mahazar that the respondent has seized as many as 17 books and registers including the current account not only belonging to the petitioner-firm, but also of 'Padma Industries Engineering Company'. The only reason given for seizing those documents is that they were incriminating against the petitioner. The question is whether that reason was sufficient to sustain the seizure.

8. In Sha Puckaraj Parasmal and Co. v. Commercial Tax Officer (Intelligence) III, Sough Zone, Bangalore [[1980] 45 S.T.C. 488] (W.P. No. 10499 of 1977 disposed of on 23rd March, 1978) this Court observed that if the reasons are not recorded on the basis of which an officer comes to entertain suspicion that the person is attempting to evade the tax, then the seizure would be bad being country to section 28(3). It was also observed that it is not sufficient for the officer simply to state that on a preliminary scrutiny of the books of account and documents, he has reason to suspect that the dealer is trying to evade the tax payable by him. These observations, perhaps, proceeded on the ground that the officer must record his reasons for the suspicion that the dealer is attempting to evade the tax due to the State. But I may state that the reasons to be recorded under section 28(3) need not always be the reasons to substantiate one's suspicion that the dealer is attempting to evade the payment of any tax, and it may well be the reason as to the relevancy of the documents which he intends to seize for the purpose of proving that the dealer is attempting to evade payment of tax or other dues. In either event, the question still remains is as to what sort of reason the searching officer is required to give before seizing the documents; should he give a detailed reason in respect of each and every document which he intends to seize and, if so, whether he has to scrutinise every such document, or is it sufficient if he records an omnibus reason for seizing all documents which he suspects Mr. Gandhi, of course, argued for the first of these alternatives. He urged that the searching officer should scrutinise every register, document or account and must record separate reasons as against each of the books, registers or documents which he intends to seize.

9. It seems to me that it is too broad a contention to accept. The acceptance of such submission may defeat the purpose for which the legislature has enacted the provision. The power packed under sub-section (3) of section 28 seems to be based on two different social objectives. The first objective is the avoidance of tax evasion in the business circle where honesty is a rare commodity. The second objective is the safeguarding of the innocent citizenry from officious and overtly-zealous agencies of law enforcement. Our approach should, therefore, be towards a blend of these two objectives. The sub-section, no doubt, appears to confer a greater latitude on the officer concerned in the interest of mobilising public revenue, but it ought not to be construed to make him a tyrannical master. The unbridled officers may become oppressive or harassing even to the honest taxpayers. The law and the language would be infinitely poorer even if we allow occasional abuse of power.

10. When the sub-section requires the officer to record reasons, it is obligatory that he should record such reasons as to the necessity to seize the documents, registers or accounts. In other words, he may seize only such documents, registers or accounts, etc., that may be relevant in any enquiry or proceeding pending or proposed to be taken against the dealer. He cannot seize whatever is found lying in the premises on a subjective satisfaction that such books of account, documents or registers might be useful to prove the evasion of payment of tax. It may be necessary for the searching officer to scrutinise the accounts, registers or documents which he intends to seize. I may, however, hasten to add that a close examination of each and every document, book or register is neither expedient nor necessary. Nor is it necessary for him to record separate reasons as against every account book, document or register which he intends to seize. The officer may have a broad survey or a broad look over all the documents, registers and accounts, but the reason or reasons which he records must indicate that he has applied his mind and should prima facie disclose that such documents are relevant to prove the suspected evasion of tax, fee or other amount due from the dealer under the Act.

11. In the light of these principles, the seizure made by the respondent cannot but be regarded as illegal since all that he has stated is that the accounts and documents, which he has seized, are incriminating against the petitioner. That is too bald a statement and hardly a reason for seizing quite a large number of registers and accounts.

12. Apart from that, the respondent has seized the books of account and registers not only belonging to the petitioner but also those belonging to the padma Industries Engineering Company, Belgaum. The search warrant issued by the Judicial Magistrate, Belgaum, did not authorise the respondent to search the premises of Padma Industries Engineering Company. The respondent, therefore, had no power to search and seize the books of account and registers belonging to the Padma Industries Engineering Company.

13. In the result, the rule is made absolute. There shall be a direction against the respondent to return to the petitioner all accounts and documents seized on 2nd February, 1978, along with the copies and notes, if any, made therefrom.

14. The petitioner is entitled to costs. Advocate's fee Rs. 100.

15. Petition allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //