1. The first of these petitions is for a mandamus to the respondents directing them to refund to the petitioners a sum of Rs. 26,200 alleged to have been illegally seized from their residence on a raid by the Sales Tax Officers on 11th September, 1964. The other is for prohibition restraining the respondent in that petition from proceeding with the enquiry for assessment for the years 1959-60 to 1963-64, as proposed in his summons dated 19th September, 1964. A. Appathurai Nadar, who is one of the petitioners in W. P. No. 1577 of 1964, is a registered dealer carrying on business in grocery articles and pulses at No. 137, Great Cotton Road, Tuticorin. He had been assessed for the years 1959-60 to 1963-64. On 11th September, 1964, according to the dealer, a group of six or seven officers of the Commercial Taxes Department, under the directions of the Deputy Commissioner, Commercial Taxes, Madurai, made a surprise inspection of his place of business, godowns and residence. When they inspected the dealer's residence, No. 73, Thattar Street, Tuticorin, at 12-30 p.m., a large number of relations had gathered in the house in connection with a condolence. The officers declined to accept the request of the dealer not to humiliate him in the circumstances and insist upon a search. As a result of the search, a sum of Rs. 65,505 was found in a Godrej safe, of which as the dealer would say, Rs. 60,000 represented the personal savings of his mother who had died at Sivakasi on 8th September, 1964, and this amount was meant for distribution among her children and the balance of Rs. 5,505 represented the personal savings of the dealer's wife. They did not lay hands on this cash at the time but took a statement from the dealer. According to him he was made to say in the statement that the total amount represented the proceeds of sales of certain damaged goods effected by him at his residence over a period of six years. In his affidavit in support of the petition he asserts that there was no basis for this statement forced on him by the two officers, the Deputy Commercial Tax Officer, Sattur, and the Assistant Commercial Tax Officer, Madurai. Later at 6-30 p.m. the same day, when the dealer was in his shop, the officers of the Sales Tax Department turned up once again in a group and demanded of him a sum of Rs. 26,200 as tax. Notwithstanding the dealer's protest, he was taken to his residence and was forced by the Assistant Commercial Tax Officer, Madurai, to open the Godrej safe and from there he took away, in spite of the protests also of the dealer's wife, a sum of Rs. 26,200. They then marched back to the dealer's shop and there he was issued two receipts, one for a sum of Rs. 26,000 and the other for Rs. 200 respectively. Both the receipts state that the third respondent, the Assistant Commercial Tax Officer, collected those sums as advance tax without specifying the period, month or year, to which the advance tax related. At 8 p.m. again the officers made their appearance at the dealer's shop and took a second statement from him. This is to the effect that the sum of Rs. 65,504 represented profits not brought into account from the year 1960-61 and therefore for the period 1960-61 to 1963-64, there must be a turnover of three lakhs each year and for the current year, a turnover of Rs. 1,10,080, the total turnover thus amounting to Rs. 13,10,080 which was subject to tax at two per cent, and that calculated at this rate the tax would be Rs. 26,200. Both the statements were admittedly signed by the dealer but his explanation is that terribly scared as he was by these repeated raids, both in his business premises as also in his house, and also with a view to avoid further humiliation, he simply signed the statements. He denies that there was any admission made by him to the Sales Tax Officers as has been made to appear in the two statements or that he suppressed any turnover in any year. The petitioners submit, therefore, that the raid by the Sales Tax Officers at the residence was totally illegal and improper and that they had no authority whatever to take away the sum of Rs. 26,200. On this basis they ask for a mandamus for a return of this sum.
2. In the other petition, on the basis of the same facts, the dealer, who is the petitioner there, states that he has been served with a summons on 19th September, 1964, in Form No. XII by the second respondent, Deputy Commercial Tax Officer, Srivaikuntam II at Tuti-corin, to appear and produce on 22nd September, 1964, all his accounts for the years 1959-60 to 1963-64, for an enquiry with reference to the search and inspection conducted on 11th September, 1964. He apprehends that if those proceedings are allowed to go on, the second respondent would, as he fears, make use of the two statements as if they contained admissions of suppressions of turnovers and assess him on that basis, and so this Court should interpose and stop the second respondent from proceeding further by a rule of prohibition.
3. The respondents have filed a common counter-affidavit in both these petitions. They deny the material allegations of the petitioners. In effect they say that during a search the dealer voluntarily produced the sum of Rs. 26,200 as for advance tax and also voluntarily made the two statements. According to them, the amount was legally and properly received and two receipts were passed in respect of them, and the dealer was not entitled to a return of the sum or to a rule of prohibition against further proceedings pursuant to the summons served by the second respondent.
4. We are of the view that the sum of Rs. 26,200 would not have been voluntarily produced by the dealer or his wife but should have been taken by one of the officers who searched the residence of the dealer. But whether it was voluntarily given or taken by force will not be material to the question of propriety or legality of the matter. No assessment proceedings had been taken to reopen the earlier assessment orders and no ascertainment of tax due on that basis had been made when the search was conducted. We can find no provision in the Madras General Sales Tax Act or the Rules made thereunder which enables the Sales Tax Department to receive any amount from a dealer as advance towards provisional or final assessment to be made or without any valid assessment order and demand made on that basis. Apparently for this reason, the second statement proceeded upon the basis that the dealer himself had offered the sum of Rs. 26,200 which the officers were at liberty to receive. We do not think that there is any such liberty or power in the officers either to receive or take by force or otherwise the amount in that way without any basis under the provisions of the Act and the Rules made thereunder, or to search and seize from the residential premises of a dealer cash found in his or his wife's chest. Though we are tempted to make strong observations on the improper manner in which the Sales Tax Officers had conducted the search, we refrain from doing so in the hope that things will not happen in the way in which they have in this case, for, observance of the rule of law is of vital importance and is compulsory not only for those who are to obey the law but also for those who are to enforce the law.
5. We hold that the petitioners in W.P. No. 1577 of 1964 are entitled to a rule. The respondents will forthwith return the sum of Rs. 26,200 to the petitioners under their joint receipt therefor. This petition is allowed with costs, which we fix at Rs. 250.
6. The other petition stands on a different footing. Though we have our own suspicion, in view of the fact that the proceedings taken by the respondent in this petition are pending, we shall make no observation with reference to the two statements of the dealer. His apprehension is that the assessing Officer may simply proceed on the basis of the alleged admissions in those two statements, in which case he would be considerably prejudiced. We cannot say that this apprehension is not without a basis but on that ground, sitting as we do under Article 226 of the Constitution, we cannot at this stage interfere with the proceedings of the respondent pursuant to his summons dated 19th September, 1964. It is not argued before us that the officers who were responsible in taking or recording the two statements of the dealer, acted in excess of their jurisdiction with reference to those two statements. Nor is it stated that the respondent has no jurisdiction to proceed and examine whether in the previous years there had been a suppression of turnovers. In the circumstances, all that we can do is to observe that the assessing Officer should give every opportunity to the petitioner, who is the dealer, to place such evidence as he can to prove that the two statements were not voluntary but were taken under duress or undue influence. It is expected that the assessing Officer will bring to bear upon the question his objective mind which should be demonstrable in his order so that the appellate authority may be in a position to judge of its propriety and fairness. Subject to these observations, we dismiss W. P. No. 1578 of 1964 but with no costs.