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Srinivas Jhawar and Brothers Vs. the Deputy Commissioner of Commercial Taxes, Hyderabad North Division - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petition No. 2161 of 1967
Judge
Reported in[1970]26STC572(AP)
AppellantSrinivas Jhawar and Brothers
RespondentThe Deputy Commissioner of Commercial Taxes, Hyderabad North Division
Appellant AdvocateT. Anantha Babu, Adv.
Respondent AdvocateS. Ramachandra Reddy, Adv. for ;Principal Government Pleader
DispositionPetition allowed
Excerpt:
- - 4. a perusal of section 28(6) of the act clearly shows that the same officer that seizes the goods has to make the order of confiscation......commercial tax officer (evasions) to release the goods to him, but the matter was referred to the deputy commissioner, commercial taxes, for orders. the deputy commissioner, without giving any notice and without making any enquiry, passed orders on 18th july, 1959, stating that the goods will be confiscated and sold in public auction on 21st july, 1959, under section 28(6) of the andhra pradesh general sales tax act. the order of the deputy commissioner was questioned by the petitioner in w.p. no. 1685 of 1959. the high court by its order dated 28th november, 1960, directed the 1st respondent (the deputy commissioner) to give notice to the petitioner and hold an enquiry as contemplated by section 28(6) of the act. while the writ petition was pending in the high court, the goods were.....
Judgment:

Chinnappa Reddy, J.

1. The petitioner is a dealer registered under the Andhra Pradesh General Sales Tax Act carrying on business in rice and other foodgrains at Hyderabad. On 20th April, 1959, he purchased 150 bags of rice from another registered dealer Sri Lakshmi Trading Company, Nizamabad, for Rs. 6,320.75 under invoice No. 3. He also paid sales tax to the seller. According to the petitioner, the goods were despatched to Zaheerabad for sale, but owing to unfavourable market conditions and unfavourable weather, the goods were kept in the house of one Ramisetti at Zaheerabad. On 19th June, 1959, the Special Commercial Tax Officer (Evasions), Hyderabad North, seized the goods on suspicion that they were the goods of one Hullappa who, they suspected, was making clandestine trade in rice. The petitioner requested the Special Commercial Tax Officer (Evasions) to release the goods to him, but the matter was referred to the Deputy Commissioner, Commercial Taxes, for orders. The Deputy Commissioner, without giving any notice and without making any enquiry, passed orders on 18th July, 1959, stating that the goods will be confiscated and sold in public auction on 21st July, 1959, under Section 28(6) of the Andhra Pradesh General Sales Tax Act. The order of the Deputy Commissioner was questioned by the petitioner in W.P. No. 1685 of 1959. The High Court by its order dated 28th November, 1960, directed the 1st respondent (the Deputy Commissioner) to give notice to the petitioner and hold an enquiry as contemplated by Section 28(6) of the Act. While the writ petition was pending in the High Court, the goods were released to the petitioner on his furnishing security. Subsequent to the disposal of the writ petition, the concerned Commercial Tax Officer also made orders of assessment in respect of the years 1959-60 and 1960-61. He accepted the returns submitted by the petitioner (which included the disputed transaction) and did not levy any tax on the petitioner on the basis that the tax had already been paid at the point of first purchase, i.e., when the rice was purchased by the petitioner from the other dealer. Thereafter there was a stalemate till 1965. In November and December, 1965, some statements were recorded by the Deputy Commissioner of Commercial Taxes. On 10th May, 1966, he passed the impugned order by which he held that the petitioner indulged in clandestine trade and that the transaction was not properly accounted for. The goods having already been released to the petitioner on furnishing security, the Deputy Commissioner directed that the security should be forfeited.

2. The petitioner filed an appeal to the Sales Tax Appellate Tribunal, but the appeal was rejected on the ground that it was not maintainable. Thereupon, the petitioner has invoked the jurisdiction of this court under Article 226 of the Constitution.

3. The first point raised by Sri Anantha Babu is that under Section 28(6) of the Act, the officer competent to confiscate the goods is the officer who effected the seizure and that in the present case, the Deputy Commissioner was not the officer that seized the goods ; he was, therefore, incompetent to make the order of confiscation. The contention of Sri Anantha Babu appears to be unanswerable. Section 28(6) of the Act reads as follows :

Any such officer shall have power to seize and confiscate any goods which are found in any office, shop, godown, vehicle, vessel or any other place of business or any building or place of the dealer, but not accounted for by the dealer in his accounts, registers and other documents maintained in the course of his business :

Provided that before taking action for the confiscation of goods under this Sub-section, the officer shall give the person affected an opportunity of being heard and make an enquiry in the prescribed manner.

4. A perusal of Section 28(6) of the Act clearly shows that the same officer that seizes the goods has to make the order of confiscation. This does not, of course, mean that where the officer is transferred his successor cannot make the order of confiscation. There is no provision in the Sales Tax Act authorising the Deputy Commissioner to intervene as it were in proceedings initiated or commenced by a Commercial Tax Officer by seizure of goods, withdraw the proceedings to his own file and pass orders of confiscation. In the absence of an express provision in the Act enabling the Deputy Commissioner, Commercial Taxes, to intervene in that manner, we do not see how he can pass an order of confiscation in a case where seizure has been effected by a Commercial Tax Officer.

5. Sri Anantha Babu also urged that assessments for the years 1959-60 and 1960-61 having been finalised and the accounts of the petitioner including the present disputed transaction having been accepted, it was not proper for the commercial tax authorities to make an order of confiscation. There seems to be substance in this contention also.

6. In the result, the writ petition is allowed with costs. Advocate's fee Rs. 100.

7. The securities furnished by the petitioner will be returned to him by the department.


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