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New Street Oil Mills Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKerala High Court
Decided On
Case NumberT.R.C. No. 68 to 71 of 1975
Judge
Reported in[1978]41STC36(Ker)
ActsKerala General Sales Tax Act, 1963 - Sections 28; Income Tax Act, 1961 - Sections 132(1)
AppellantNew Street Oil Mills
RespondentState of Kerala
Appellant Advocate V.R. Venkita Krishnan, Adv.
Respondent AdvocateGovernment Pleader
Cases ReferredState of Rajasthan v. Rehman
Excerpt:
.....income tax act, 1961 - revision petition against assessment to sales tax - assessee contended that search and seizure illegal - as such records obtained by such search and seizure not be utilised against assessee - even if search and seizure be illegal materials searched and seized can be looked into for purpose of assessment - materials put to assessee and no complaint made by him on account of non-disclosure of gist or substance of contents of secret documents seized after search - held, revision petition liable to be set aside. - - the assessments were on best of judgment under section 17 of the act after issuing the requisite pre-assessment notices on the ground that the assessee did not produce accounts despite several notices to do so. we skip a good part of the correspondence..........basis relying on the current consumption after allowing deduction towards consumption for flour mill, etc. no evidence has been adduced to show that the computation of the officer is unreasonable and would call for any interference. hence the assessment for that year is confirmed.' 12. so far as the year 1968-69 is concerned it made a slight reduction in the estimated turnover. it noted that the accounts seized were made up to 26th august, 1968, and could be taken to represent five months' turnover. the turnover for the year was worked out on strict geometrical proportion, rather than by doubling the turnover disclosed up to 26th august, 1968, as done by the sales tax officer and the appellate assistant commissioner. in our attenuated revisional jurisdiction under section 41of the act,.....
Judgment:

Gopalan Nambiyar, C.J.

1. These four tax revision cases under Section 41 of the General Sales Tax Act, 1963, are by the same assessee against assessments to sales tax for the years 1966-67, 1967-68, 1969-70 and 1968-69, respectively. The assessments were on best of judgment under Section 17 of the Act after issuing the requisite pre-assessment notices on the ground that the assessee did not produce accounts despite several notices to do so. The documents and records stated to have been seized on search of the assessee's premises were relied on ; and, in the light of these records, the taxable turnovers reported by the assessee for the years in question were enhanced and revised as follows :

Assessment year

Reported taxable turnover

Enhanced or revised turnover

1

2

3

Rs.

Rs.

1966-67

1,21,030.25

11,92,592.54

1967-68

2,16,299.55

10,99,199.06

1969-70

2,94,433.99

11,99,024.00

1968-69

99,507.10

11,55,120.00

2. Counsel for the petitioner stressed this phenomenal increase from the reported turnover to the revised or enhanced figure as itself sufficiently demonstrative of the taxing authorities having given free rein to their fertile imagination and abandoned the process of judicial determination and assessment.

3. The history of the assessments in question opens with a chapter of somewhat prolonged and protracted correspondence between the assessee's advocate and the taxing authorities, in the course of which--we regret to observe--they strayed into avoidable limits in the use of language, unbecoming of both. To trace these rather briefly, the position disclosed is this : By notice dated 5th September, 1968, the assessee was called upon to appear on 10th September, 1968, with its accounts for all the four years. According to the petitioner, he produced the accounts on 10th September, 1968. On 16th September, 1968, the Intelligence Officer wrote to the assessee drawing attention to the office-summons dated 5th September, 1968, and complaining that the assessee had neither appeared on 10th September, 1968, nor produced the accounts called for, nor filed any petition for adjournment. A final opportunity to appear and produce the accounts was given by adjourning the proceedings to 10 a.m. on 24th September, 1968. The assessee replied on 20th September, 1968, stating that the accounts had been produced on 10th September, 1968. The Intelligence Officer replied by 4th October, 1968, by which the assessee was informed that on 27th August, 1968, he had inspected the assessee's premises along with the squad of officers and seized certain secret account books which were not shown to the department. The assessee's statement that its partner. Sri A. Narayanan Nambiar had appeared on 10th September, 1968, with its accounts was denied as also the alleged production of accounts. A further opportunity to produce documents on 11th October, 1968, was granted. On 11th October, 1968, the lawyer replied. Confining only to the relevant facts, the search and inspection stated to have taken place on 27th August, 1968, were denied. The charge of non-production of accounts was also denied. We skip a good part of the correspondence showing the battle of wits between the assessee's counsel and the Intelligence Officer. In answer to the assessee's letter dated 2nd June, 1969 (not in the paper book), the officer, in a letter dated 16th June, 1969, addressed to the assessee's advocate, offered inspection of the secret accounts and other documents seized on search. Rather than take advantage of the offer, the assessee's counsel by his reply dated 18th June, 1969, cavilled at the officer for 'mistaking me for my client' (to quote his language), and along with denying the search and seizure denied also any desire on the part of the assessee to peruse the documents. It was stated that the question of perusing the seized documents did not arise. The officer proceeded to assess in the fashion indicated.

4. Counsel for the petitioner contended that there was, in fact, no search and seizure as alleged ; and that even if there was, the same was illegal; and that the assessing authorities were wrong in relying upon the records and the materials seized for the purpose of assessment. On the question of the fact of seizure, we are afraid, we are powerless to interfere in revision, having regard to the limited scope of Section 41 of the General Sales Tax Act under which only an erroneous decision on a question of law or a failure to decide such question can be canvassed. Counsel for the petitioner stressed particularly that the search and seizure which are supposed to have taken place on 27th August, 1968, were, for the first time, disclosed only by the officer's letter dated 4th October, 1968, and was not referred to at all in the earliest letter after search dated 5th September, 1968. This, undoubtedly, is so. But, on that date, at least the search and seizure were disclosed. And the Government Pleader submitted that the notice dated 5th September, 1968, was in the printed form enjoined by the Act and the Rules, in which there was no scope to disclose the search. Correspondence flowed profusely thereafter between the assessee's counsel and the department. But significantly enough, the assessee did not even once ask the department what the secret documents and accounts wore, which were supposed to have been taken into custody after the search and seizure. And when, on 16th June, 1969, the officer offered inspection of the seized documents, the same was spurned by the assessee's counsel by letter dated 18th June, 1969, on grounds which appear to us improper. What is more, although, according to the petitioner, the secret documents and accounts stated to have been taken into custody have not yet been returned and cannot be retained under Section 28 of the General Sales Tax Act beyond the maximum period of 45 days, the assessee has not so far taken steps to get back the records or to compel their return. These, along with the facts noticed in the orders of the authorities concerned, leave us in no doubt that we must proceed on the basis that search and seizure actually took place.

5. It was complained that the search and seizure were illegal and that, therefore, the records obtained by such search and seizure should not be utilised against the assessee. The learned Government Pleader strongly contested that the legality of the search had not been specifically urged before any of the authorities, viz., the Sales Tax Officer, the Appellate Assistant Commissioner, and the Appellate Tribunal, and that, therefore, the point should not be allowed to be urged in revisional proceedings. The orders of the authorities concerned do not disclose the point as to the legality of the search and seizure having been urged in any specific or pointed form. But, at the same time, the counsel for the petitioner drew our attention to ground No. 10 of the grounds of appeal to the Appellate Assistant Commissioner and to the Tribunal where the legality of the search was specifically put in issue. It might not be altogether fair to preclude the petitioner from urging this point. It seems really to be immaterial and irrelevant also. As the learned Government Pleader rightly pointed out, it has been ruled by a Division Bench of this court in Varghese Varghese v. Commissioner of Agricultural Income-tax : [1976]105ITR732(Ker) , that even if the search and seizure be illegal, the materials seized can still be utilised and looked into for purpose of assessment. .

6. We may still consider the argument as to the legality of the search. Section 28 of the General Sales Tax Act provides for search and seizure of accounts and for making an inspection of the premises of an assessee. Subsections (4), (5) and (6) of Section 28 read as follows :

'28. (4) All searches under this section shall, so far as may be, be made in accordance with the provisions of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974),

(5) The officer making the inspection or search may seize such accounts, registers, records or other documents as he considers necessary and on such seizure shall grant the dealer a receipt of the things seized.

(6) The accounts, registers, records or other documents seized under Sub-section (5) shall not be retained by the officer seizing them beyond a period of thirty days from the date of the seizure except with the permission of the next higher authority, unless they are required for any prosecution under this Act.'

7. Much the same provisions as are contained in Section 28 are repeated in Rule 34. On the above provisions, the argument was that Section 100(4) of the Criminal Procedure Code requiring attestation of search by witnesses and also Section 165 of the Code would be attracted to the search. There is little difficulty in holding that Section 100(4) of the Criminal Procedure Code will be applicable. But Section 165 of the Code, requiring magisterial intervention, is somewhat difficult of application to a search envisaged by Section 28(4). But the learned Government Pleader rightly stressed that the provisions are made applicable by Sub-section (4) only 'so far as may be' and that this would be sufficient to exclude the full rigour of Section 165 of the Code of Criminal Procedure. Whatever that be, it was very fairly and properly accepted by the counsel for the revision-petitioner that the illegality or irregularity in the search would not by itself vitiate the search; and that the acceptability of the evidence as to search is still a matter for judicial assessment and determination in the proceedings in which it is called in question. In the case on hand, it has come to light from the correspondence and from the records that the assessee's partner, Narayanan Nambiar, disappeared from the scene, and that the accountant of the assessee, Mukundan, refused to sign the statement or to acknowledge the receipt given to him for the seizure of the books ; but the Intelligence Officer prepared a mahazar over and above the first information report and recorded a statement of the accountant. It was after discussing these facts about the search, which had been sufficiently noticed in the protracted correspondence and also in the orders of the authority, that the orders impugned found that search and seizure could be relied upon. We find no ground in revision to interfere with the said finding.

8. Counsel for the petitioner cited to us the decision in Income-tax Officer, Special Investigation Circle B, Meerut v. Seth Brothers : [1969]74ITR836(SC) , with respect to a seizure under Section 132 of the Income-tax Act, where it was ruled that these are not illegal on the ground that some of the books and records of other parties were also seized. It may be notedthat construing Sub-section (2) of Section 132 of the Income-tax Act, worded on this part of it in similar terms as Section 28 of the Sales Tax Act (viz., 'so far as may be'), it was observed that the same does not imply that the limitations of Section 165 of the Criminal Procedure Code are also incorporated.

9. But counsel for the petitioner relied on an earlier ruling of the, Supreme Court in State of Rajasthan v. Rehman : 1960CriLJ286 , rendered under the provisions of the Central Excises and Salt Act, where there are observations to show that Section 165 of the Criminal Procedure Code is also attracted to the search and that the non-recording of reasons will vitiate the search. As we stated earlier, it is unnecessary to expatiate on this aspect, as there is enough authority in this court, at any rate, that even if the search and seizure be illegal, the materials searched and seized can still be looked into and relied upon for purpose of assessment. In the instant case, these were duly put to the assessee and no complaint was made on account of the non-disclosure of the gist or the substance of the contents of the secret documents seized after search.

10. The learned Government Pleader invited our attention to the Fourth Edition, 1974, of Sarkar on Criminal Procedure Code, pages 94 and 254, where, after an examination of the position, the proposition has been stated that even if the search is illegal, the materials seized during the search can still be looked into and relied upon.

11. The evidence as to search and seizure has been accepted by the Sales Tax Officer, the Appellate Assistant Commissioner and the Appellate Tribunal. As for the quantification of the turnover and enhancement of the reported taxable turnover, the Tribunal observed in paragraphs 9 and 10 as follows:

'9. As already pointed out, the assessments for the first two years were made on the basis of the accounts detected by the officer and hence do not call for any interference.

The assessment for 1969-70 also is seen to have been made on a proper basis relying on the current consumption after allowing deduction towards consumption for flour mill, etc. No evidence has been adduced to show that the computation of the officer is unreasonable and would call for any interference. Hence the assessment for that year is confirmed.'

12. So far as the year 1968-69 is concerned it made a slight reduction in the estimated turnover. It noted that the accounts seized were made up to 26th August, 1968, and could be taken to represent five months' turnover. The turnover for the year was worked out on strict geometrical proportion, rather than by doubling the turnover disclosed up to 26th August, 1968, as done by the Sales Tax Officer and the Appellate Assistant Commissioner. In our attenuated revisional jurisdiction under Section 41of the Act, we find no scope to interfere in revision. We dismiss these tax revision cases, with no order as to costs.


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