Skip to content


Deoralia Brothers and anr. Vs. the State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax;Constitution
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 3672 (W) of 1973
Judge
Reported in[1982]50STC113(Cal)
AppellantDeoralia Brothers and anr.
RespondentThe State of West Bengal and ors.
Appellant AdvocateN.C. Banerjee, ;Mohitosh Majumdar, ;R.N. Dutt, ;Asoke Kumar Ganguli and ;Rupendra Nath Mitra, Advs.
Respondent AdvocateS.N. Dutta, Adv.
DispositionPetition allowed
Cases ReferredOgarhmull Choudhury and Co. v. Commercial Tax Officer
Excerpt:
- m.n. roy, j.1. petitioner no. 1, messrs. deoralia brothers, is a registered partnership firm (hereinafter referred to as the said firm), within the meaning of the indian partnership act, 1932, having its registered office at 26, beniatolla street, calcutta. petitioner no. 2,' shri kisan agarwal, is one of the partners of the said firm. .2. it has been claimed that on or about 3rd august, 1973, on the basis of a purported raid in the shop of the petitioners, a seizure list under section 14(3) of the bengal finance (sales tax) act, 1941 (hereinafter referred to as the said act), was made by the inspectors of commercial taxes-cum-investigation, bureau of investigation, being respondents nos. 2 and 3 in this rule, and various documents and records of the said firm were seized. such seizure.....
Judgment:

M.N. Roy, J.

1. Petitioner No. 1, Messrs. Deoralia Brothers, is a registered partnership firm (hereinafter referred to as the said firm), within the meaning of the Indian Partnership Act, 1932, having its registered office at 26, Beniatolla Street, Calcutta. Petitioner No. 2,' Shri Kisan Agarwal, is one of the partners of the said firm. .

2. It has been claimed that on or about 3rd August, 1973, on the basis of a purported raid in the shop of the petitioners, a seizure list under Section 14(3) of the Bengal Finance (Sales Tax) Act, 1941 (hereinafter referred to as the said Act), was made by the Inspectors of Commercial Taxes-cum-Investigation, Bureau of Investigation, being respondents Nos. 2 and 3 in this rule, and various documents and records of the said firm were seized. Such seizure has been stated to be made on mere suspicion. Then by the memo dated 7th August, 1973, the petitioners were asked to appear before the Commercial Taxes-cum-Investigation Officer, with all books of account and documents relating to the business between the period from 1969-70. They were also asked to explain the books of account and records as seized.

3. It is the case of the petitioners that they have been duly and regularly paying sales tax, without any complaint from anybody and as such it has claimed that the said memo dated 7th August, 1973, was absolutely illegal, without jurisdiction, baseless, apart from being unwarranted. The petitioners, of course, gave their reply by their letter dated 27th August, 1973, to the officer concerned, informing thereby that they were deputing their representative, Shri Ram Chandra Sharma, to explain the case. In fact, it has been claimed that the said Shri Sharma appeared before the authorities concerned and made submissions on and explained the books of account. It has been claimed by the petitioners that in the facts of the case, there was no question of evasion of tax and such question would arise only after the assessment is completed and before that the Commercial Tax Officer was not competent to consider any tax return as false, inasmuch as before the assessment is completed, any dealer, can submit revised return in lieu of the return already filed. The petitioners have claimed that reasonable opportunities should be given by the Commercial Tax Officer to the assessee before coming to the conclusion on evasion of tax and in the instant case such opportunities have been denied. It was also contended that respondents Nos. 2 and 3, as mentioned above, acted beyond their authority and competence or jurisdiction, in the matter of seizure as made or withholding the documents in question as such action was resorted to without obtaining the prior sanction of the Commissioner of Commercial Taxes.

4. It has further been stated by the petitioners that on or about 23rd August, 1973, one Shri A.K. Roy, the Additional Commissioner, Commercial Taxes, as Special Officer of the Bureau of Investigation by a memo retained the books of account and other documents as seized. Such action has been claimed to be beyond the period of more than 21 days and thereby purported to act in terms of the sanction under Rule 70 of the concerned rules. It further appears that a similar order dated 29th August, 1973, was served on the petitioners whereby the authorities, as mentioned above, purported to retain the books of account and other documents as seized on 9th August, 1973, and kept them for more than 21 days by according sanctions in terms of the said Rule 70. The petitioners have also stated that on 5th December, 1973, another purported order was issued by the authorities concerned informing them about the retentions of the books or documents till 10th September, 1973.. Such actions, as mentioned above, have been claimed by the petitioners to be without any reason being recorded and retentions as made' have been claimed to be wholly illegal, arbitrary and in capricious use of power. It is the case of the petitioners that 'reason to believe' and/or 'purported satisfaction' of the authorities concerned was not based on their subjective satisfaction and the same was or is subject to judicial scrutiny inasmuch as such satisfaction and/or reason to believe was not or cannot be regarded as an empty formality depending on the whims and caprice of the authorities concerned. The words 'reason to believe' and/or 'satisfaction' according to the petitioners should act as a deterrent in the exercise of power and is intended as a safeguard to the rights of the citizen and such provisions do require the following of the rules of natural justice. Rule 70 as mentioned above provides inter alia that if an Inspector or a Commercial Tax Officer seizes any books of account, registers or documents under Section 14 of the said Act, he shall not retain them beyond 21 days, without the written sanction of the Assistant Commissioner. It further provides that no Inspecting Officer shall retain such books for more than 42 days without the sanction of the Commissioner. On perusal of such rules and construction of the same, the petitioners have contended that those rules go to show that the Additional Commissioner concerned, being respondent No. 4 in this case, was not the person competent in law to retain the books of account and/or necessary documents for more than 21 days. It has been claimed that when the statute provides for something to be done in a certain manner, the same cannot be done ignoring the statute and if the same is done, such action would be invalid and bad in law. It was the specific case of the petitioners that in the instant case the books of account and/or documents which were seized on 3rd August, 1973, was being wrongfully withheld by the authorities concerned. It has been claimed further that under Section 20(3) of the said Act, a person aggrieved by a sanction as accorded by the Commissioner of Commercial Taxes, for retention of books beyond the statutory period, would be authorised to make an application for revision before the Board of Revenue and the said Board is also required to give a reasonable opportunity of being heard to such person under Section 20(5) of the said Act.

5. It was also contended that after retention of the documents and books, as mentioned above, beyond the statutory period, is to be made, due sanction from the Commissioner of Commercial Taxes or the Assistant Commissioner of Commercial Taxes would be a statutory requirement and necessary and therefore cannot be regarded as a trifling one. It was also contended that the retention of the books beyond the statutory period of 21 days and according sanction thereto would not be an administrative act inasmuch as such renewal of sanction for retention, the person aggrieved has a right to apply for revision of the order complained against under Section 20(2) of the said Act and the Board of Revenue is also required to give reasonable opportunity of hearing, to such person, in terms of Section 20(5) of the said Act. It was further submitted that admittedly there has been no sanction of the Commissioner or the Assistant Commissioner under Rule 70 of the said Act, in the instant case, and inasmuch as the books of account and other relevant documents were and are being illegally retained by the respondents and for such illegal and motivated withholding or seizing them illegally, the business of the petitioners' has been paralysed and their right to carry on business under article 19(1)(g) of the Constitution of India has been rendered nugatory and illusory. .It has further been claimed that in all revenue laws the interest and safety and well-being of the subject is sufficiently protected and such rights cannot be trifled with by any authority, statutory or otherwise. The petitioners have also contended that such safety businesses are non-existence in the said Act with the result under Section 14(3) and (4) of the same would be ultra vires the Constitution of India (sic).

6. There was no affidavit-in-opposition filed in this proceeding although the rule was made ready as regards service on 3rd April, 1974, and previously an application dated 8th September, 1975, was filed by the answering respondents for vacating the interim order or modification thereof. It should also be noted that on 15th September, 1975, after hearing the learned Advocates, the court directed that the respondents will proceed with the assessment proceedings and complete the same on examining the books of account already seized in the presence of the petitioners in the main rule, after due notice to them. It was further directed that the order of assessment may be made, but the same must not be given effect to or a demand should not be raised thereon and no communication of the order should be made to the petitioners. There was the specification and direction that the said proceedings will, however, be subject to the result of the rules, and in case the petitioners succeed in the main rule, all proceedings will be quashed. While making such order the court had further given liberty to the respondents to file affidavit-in-opposition within a stipulated time as mentioned above. Even in spite of such directions no affidavit was filed and the prayer for extension of time for filing such affidavit having been refused by this Court, Mr. S.N. Dutta, appearing for the answering respondents, stated that the statement made in the application for variation of the interim order, as mentioned hereinbefore, may be treated as an affidavit-in-opposition in the main rule. The respondents have taken the plea that the authorities concerned made an inspection and examined the books of the firm which were available at their business place and it was found that the cash books were written and balanced up to 28th June, 1973, and there was no record to show the up-to-date position of the cash books on the date of such visit. They have further stated that it was found that the said firm was in possession of a large number of declaration forms from parties, whose genuineness of carrying on actual business were questionable according to the secret informations received by the Bureau of Investigation. The respondents have further stated that during examination it was found that a sum of Rs. 51,000 was withdrawn in cash from the business by the partners on 6th November, 1972, and the reason for such withdrawal of the said heavy amount could not be known.

7. It was also specifically stated by the respondents that the authorities suspected that the said firm was attempting to evade payment of taxes under the said Act and, as such, after recording the reasons for seizure at the top of the seizure list, seized the books of account of the said firm under Section 14(3) of the said Act, duly granting the receipt for the same. It has also been asserted that the concerned inspection and seizure was made in the presence of petitioner No. 2 and a spot enquiry report, elaborating the discrepancies, was prepared and the same countersigned by the said petitioner No. 2. It should also be noted that Mr. Dutta, apart from making his submissions on the basis of the statement, as mentioned above, also produced the records which have been looked into and considered.

8. On the above pleadings, it was contended on behalf of the petitioners that the necessary tests regarding search and seizure and the requirements for granting the sanction to withhold the records and documents, as seized, beyond the statutory period were not satisfied and in any event, since the assessment was not completed or any assessment of amount was made, the petitioners could not have been claimed to be in default, and in fact, they were not in default. It was contended further that the search and seizure was not bona fide or based on any legal basis. It was further claimed that necessary satisfaction, which should be subjective, or the reasons to believe as was and is required of a reasonable man was not duly formed. In fact, it was claimed that the entire action was taken on caprice and whims, and that too, without the existence of reasons to believe that the petitioners were in default.

9. Rule 71 of the Bengal Sales Tax Rules, 1941, speaks of delegation of the powers of the Commissioner, in appropriate cases, to the authorities as mentioned in column 4 of the concerned list, and on the basis of such list, it was contended that there was no due delegation for steps to be taken or initiated or directions given under Section 14 of the said Act, which lays down the powers of the Commissioner to have or direct production and inspection of accounts and documents or to give directions to search a premises. It was specifically contended that such power having been vested with the Commissioner, and there having been no due delegation of such powers, in terms of the rules as mentioned above, to the officers who took or initiated the action, the action as taken or initiated cannot be allowed to be continued. It was then contended that since the time to hold the seized documents and records beyond the statutory period was extended without notice, so, even though such extension was directed, the same must not be deemed to.be valid and should be held as made in violation of the principles of natural justice and as such bad and void. It was claimed that at least there was no material or any legal evidence on record establishing the fact that the relevant extension was given with notice to the petitioners or the satisfaction was of the Commissioner and not that of the Inspectors concerned or such satisfaction was duly arrived at or recorded.

10. In support of the submissions on the question of satisfaction and how the same should be arrived at, reference was made on behalf of the petitioners to the unreported decision in Ogarhtnull Choudhury v. Commercial Tax Officer [Civil Rule No. 4186 (W) of 1973 decided on 23rd May, 1978-Calcutta High Court] page 126 infra. In that case also Mr. S. N. Dutta appeared for the respondents. In this case, Mr. Dutta produced the records containing the cyclostyled form, authorising the Inspector-cum-Investigation, Bureau of Investigation, to inspect the place of business of the said firm and enquire whether the dealer attempted to evade payment of sales tax under the said Act. Those officers were further authorised to take such action as they deem fit, as per the provisions of the said Act. The cyclostyled authorisation was dated 3rd August, 1973, and issued by the Commercial Tax Officer, Bureau of Investigation, which was claimed by the petitioners to be not a proper authorisation. It was also contended that the said authorisation should not be looked into, as the original was not produced. It should be noted that at the top of such authorisation, the particulars of the file number being A-8.319/73 has been quoted. It was contended by Mr. Dutta that since there were reasons to suspect that the said firm was trying to evade tax, the action as in this case was initiated and directed was proper. On the question of delegation of powers, reference was first made to the determinations in the case of Assistant Commissioner of Commercial Taxes, Central Section, West Bengal v. Itco Private Ltd,. [1975] 35 STC 248. In that case, it has been observed that the power delegated under Section 15 of the Bengal Finance (Sales Tax) Act, 1941, read with Rule 71 of the Bengal Sales Tax Rules, 1941, by the Commissioner to the Assistant Commissioner to revise an order passed by the Commercial Tax Officer would not become infructuous or non est by the Commissioner vacating the office before the issue by the Assistant Commissioner of the notice to revise the order. In such a case, in the absence of a revocation by the Commissioner, which could be done, the successor-in-ofnce must be deemed to have accepted and approved of the delegation made by the predecessor. All actions taken by the erstwhile Commissioner in his official capacity are valid and continue as if the same are the own acts of his successor-in-office under the authority of law unless revoked or otherwise modified or abrogated and under the Bengal Finance (Sales Tax) Act, 1941, even though there is no express provision for assessing escaped turnover, the power of revision conferred on the Commissioner is of the widest amplitude and such a power cannot be circumscribed or limited so as to exclude assessment of escaped turnover, which will be contrary to the clear and unambiguous provisions of Section 20(3), apart from relying on the determinations in the Case of Sheonath Prasad v. State of Bihar : 1969CriLJ37 , in which case, it has been held that the power of inspection, search and seizure under Section 17 is not limited to a place of business declared by a dealer in his application for registration or otherwise and it can be exercised to in respect of any and every place of business. When a certain place is declared by the dealer as his place of business he cannot be heard to say at a later stage that it is not his place of business. Further when the Commissioner has delegated his powers of search under Section 17, the delegate is not investigating or dealing with an offence and the provisions of Section 165(4) read with Section 103 of the Criminal Procedure Code are therefore not attracted and he is not required to comply with those provisions. While on the question of the propriety of the search and seizure, reference was made by Mr. Dutta to the determinations in the case of Commissioner of Commercial Taxes v. Ramkishan Shrikishan Jhaver : [1967]66ITR664(SC) apart from relying on the relevant provisions of the said Act and the Rules framed thereunder. In the case as cited above, which was one under the Madras General Sales Tax Act (1 of 1959), it has been laid down that while making a law under any entry in the schedule to the Constitution it is competent to the legislature to make all such incidental and ancillary provisions as may be necessary to effectuate the law ; particularly, in the case of a taxing statute, it is open to the legislature to enact provisions which would check evasion of tax. It is under this power to check evasion that provision for search and seizure is made in many taxing statutes. The legislature has therefore power to provide for search and seizure in connection with taxation laws' in order that evasion may be checked. In that case, Section 41 of the Madras Act, as mentioned above, was construed and it has been observed that the provisions of Section 41(2) and (3) of the Madras General Sales Tax Act, 1959, are reasonable restrictions on the fundamental right to hold property and to carry on trade under article 19(1)(f) and (g) of the Constitution and are protected by clauses (5) and (6) of article 19, apart from holding amongst others, that if in relation to a search under Section 41(2) of the Act, the safeguards are not followed, anything recovered on such a defective search, must be returned. Lastly, on his submissions that the notice as issued was valid, Mr. Dutta referred to the determinations of this Court, in the case of Balihari Colliery Co. Ltd. v. Commercial Tax Officer [1957] 8 STC 194, where it has been observed that the Commercial Tax Officer issued a notice under Section 11(2) of the Bengal Finance (Sales Tax) Act, 1941, read with Section 15 and Rule 71, but it was contended that as under Section 11 the issue of a notice depended upon the Commissioner's satisfaction which must be based upon information which had come into his possession, there could be no proper delegation of the Commissioner's power under that section, and therefore the notice issued by the Commercial Tax Officer was invalid : Held, that the Commercial Tax Officer derived both power and jurisdiction by virtue of the delegation and that it was he who had to be satisfied and such satisfaction was to be grounded upon information which had come into his possession and therefore the notice issued by the Commercial Tax Officer under Section 11(2) was valid. Apart from holding that the proper way of interpreting the Act and the Rules was that the Commissioner had a right to delegate and once he had delegated the power, the name of the delegate should be substituted for that of the Commissioner. On the basis of the determination, as cited above, Mr. Dutta further claimed that when the notice by the Commercial Tax Officer was valid, the name of the delegate has to be substituted for that of the Commissioner.

11. The powers under sections 14 and 14A are meant for taking steps to prevent evasion of tax and as observed in the case of P. Venkatachalapathi v. Commercial Tax Inspector [1965] 16 STC 894, such power, if exercised, is only administrative and is not to be confined in its operation to a pending quasi-judicial proceeding, as in the entire section, there is no indication that such power would be exercised only when a quasi-judicial proceeding in the shape of assessment, reassessment or the like, was pending. Such power is vested on the authorities to get all the required and necessary information regarding the taxable turnover of the dealer. A statement made by a dealer or his agent to an officer at the time of inspection at the place of business would not be an inadmissible document even though the evidentiary value may be in question. But such evidence only may not be sufficient to sustain a conviction. The officers concerned are authorised to have inspection at all reasonable times and of all account books and registers maintained by a dealer in the ordinary course of business, so also of the goods in their possession. But, for such purposes, entry should not be made at odd and unearthly hours. The powers under the section must also be used and exercised in bona fide manner and not in a mala fide way. The officers concerned should not ordinarily prepare the statements themselves for the purpose of signature of the dealer, when chargesheet is intended and later rely on such statements as evidence. The officers are entitled and authorised to inspect the accounts and registers of the dealer, as maintained in the ordinary course of business and also those goods in their possession, so also their shops and establishments.

12. Section 14(4) empowers the officers concerned, to enter the premises, for the purposes of Section 14(3) and such premises would mean the shop or premises of the dealer under the said Act. All searches would mean and include inspections and all inspections are not searches. The provisions of the Code of Criminal Procedure would apply, mutatis mutandis, to all search and seizure. It should be remembered that Section 14 of the said Act does not invest the officers concerned with police power or ordinarily with general and indiscriminate powers of entry into and search of all places. Such power of search, as mentioned hereinbefore, is intended to act and operate as an effective deterrent against tax-evaders. The said Act confers wide powers to the sales tax authorities to inspect the account books of the dealers and for that purpose, even to pay surprise visits to his shop, and the dealer concerned is under the legal obligation to allow the authorities to effect such inspection of the account books and other relevant records. The legality of search and seizure would be subject to judicial control. In the case of Commissioner of Income-tax v. Mahabir Prasad Poddar : [1974]93ITR215(Cal) , where the question of approval or sanction to be accorded by a higher authority was in issue, it has been observed that where an order has the effect of depriving a person of his right to property or otherwise affecting him prejudicially, the same to be effective and valid must be communicated to the concerned party. Thus, it appears that until the order of extension is communicated to the aggrieved party, the same would not be effective.

13. Section 15 of the said Act and Rule 71 of the Rules framed thereunder would be of relevant consideration, on the arguments as advanced on delegation, the particulars whereof have been indicated hereinbefore. Section 15 deals with delegation of Commissioner's powers and lays down that subject to such restrictions and conditions as may be prescribed, the Commissioner may, by order in writing, delegate any of his powers under the said Act except those under Section 22(2) to any person under Section 3 to assist him. It has been observed in the case of Shew Sakti Oil Mills v. Member, Board of Revenue ILR (1949) Cal 347, that though Rule 71 prescribed the lowest rank to which powers under the said Act could be delegated by the Commissioner, what has been done in West Bengal is that the said rule has been copied out is the material portion and signed, effecting delegation in terms of the said rules, without any modification. It is apparent that the delegate received all or any of the powers vested in the delegator, unless, as observed in the case of Kewalram v.. Collector ILR [1944] Mad 826, restrictions were superscribed in the instrument of delegation. The question to be answered in this case is, if the actions as initiated or taken were on due satisfaction of the Commissioner and if such satisfaction is subjective, incapable of being delegated, apart from the fact that whether such obligation should be on informations, which should come to the possession of the Commissioner, and none else. Such questions came up for consideration in the case of Shew Sakti Oil Mills v. Member, Board of Revenue ILR (1949) Cal 347, on a reference by the Board under Section 21(1) of the said Act. Thus, it has been observed, amongst others, that since' the said Act authorises a delegation of the power to make an assessment, the same authorises a delegation of all things required to be done for the purpose of making an assessment and powers incidental thereto. The duty to be satisfied in exercise of the power, in my view, would mean and postulate the satisfaction to be duly arrived at and that should be a condition precedent for the exercise of power. If acts or actions are taken contrary to the above, then such exercise of power would be void and irregular apart from being illegal and unauthorised and as such inoperative also. If the Commercial Tax Officer was to make an assessment based upon the satisfaction of the Commissioner, he would be exercising no power at all on his behalf, but would be carrying out a mechanical duty, an embarassing and anomalous position, in that event, would arise, and that too since or when satisfaction would be of the Commissioner or by him, based on informations communicated to him, when appeal would lie to the Commissioner from the order as made by the Commercial Tax Officer. As such, in the case of Balihari Colliery Co. Ltd. v. Commercial Tax Officer [1957] 8 STC 194, it has been observed that the proper way of interpreting the said Act and the Rules framed thereunder would be that the Commissioner had or has the right to delegate and once he has delegated such power, the name of the delegate should be substituted for that of the Commissioner.

14. Under the scheme of the said Act, the Commissioner is the sole repository of all powers. The statutory provisions and the division of work under the same and the Rules as framed thereunder have been found to be intra vires, and the argument that an appeal against an order deemed to have been passed by the Commissioner could not be preferred before the Commissioner or any of his subordinates, was rejected in the case of Kapur Brothers v. Commercial Tax Officer [1958] 9 STC 121 as unsound. Such power, as aforesaid, once delegated by the Commissioner to a Commercial Tax Officer, continues till such delegation is either amended or withdrawn by the Commissioner or his successor-in-office.

15. In the unreported determinations in the case of Ogarhmull Choudhury and Co. v. Commercial Tax Officer [Civil Rule No. 4186 (W) of 1973 decided on 23rd May, 1978-Calcutta High Court] page 126 infra, ex -parte assessments by the Commercial Tax Officer, Central Section, as made for the 4 quarters ended Kartick Badi 14, Sambat years 2028 and 2029, were made and such assessments were claimed to be void ah initio, illegal and without jurisdiction, apart from the fact that they were in violation of the principles of natural justice and mala fide too. In that case, admittedly, two officers, representing them to be Inspectors of Commercial Taxes, Investigation Bureau, visited the office of the petitioners and made searches for the purpose of making an investigation against the petitioner, as a dealer under the said. Act. It was contended that the search and seizure was conducted as the petitioners therein were taken as they were evading the payment of tax and such search and seizure by the officers were done under Section 14(3) of the said Act. Such search and seizure, as mentioned above, was contended by the petitioners to be invalid, illegal, bad, void and without jurisdiction and authority of law inasmuch as the satisfaction of the Commissioner, which is required in terms of the statute, was not duly entered' before the action as initiated or the seizure as made. In fact, it was submitted that the prerequisites under Section 14(3), which was also argued in this case, were absent and as such, the action as taken was also void. The report, which was made by the officers, for entering the satisfaction in that case was as under :

We had been to the place of the above dealer and met Sri Ogarhmull Choudhury, partner. Sri Choudhury, partner, states that they do not deal in any items which are taxable under the Sales Tax Act. On spot examination of the books of account, we found that the dealer deals in taxable items like mumphuli (groundnut). The dealer's place of business was then searched by us. The seizure of some books of account and documents were made from the dealer's place of business, a copy of the seizure list was handed over to Sri Ogarhmull Choudhury, partner, and read over and explained to him in Hindi, and the reasons for seizure, were to the following effect:

As we have reasons to suspect that M/s. Ogarhmull Choudhury and Company of 26, Burtolla Street, Calcutta-7 (unregistered), attempted to evade payment of tax under the Bengal Finance (Sales Tax) Act, 1941, we have seized the following accounts and records of the said dealer from Sri Ogarhmull Choudhury, partner, under Section 14(3) of the said Act, as these records are considered to be necessary for the purpose of taking action under the provisions of the said Act.

Sl. No.

1. (A & B) Two dalali books (signed on first written page of each).

2. (A & B) Two diaries containing miscellaneous accounts (signed on inside cover of each).

3. (A to C) One diary and two exercise books containing miscellaneous accounts (signed on inside cover of each).

4. One flat file containing copies of telegrams (signed inside cover). Sd/- P. Ghose Roy 3-8-73Received copy. Sd/- P. G. Saha 3-8-73Inspectors of Commercial Taxes-cum-Investigation,Bureau of Investigation, Stephen House, 4th Floor,Dated 3-8-73. Calcutta-1.Time 5-30 P. M. Signature...

16. In that case, on a reference to the reasons as above-mentioned, apart from contending on the illegality and irregularity of the reasons and the seizure as made, it was contended that the reasons, as recorded, were no reasons at all and that apart, the officers concerned, could not have these reasons as delegate of the Commissioner and such reasons as recorded by such delegate of the Commissioner were also bad, as they could not have been effected on the concerned delegation. It was also contended that the provisions of Section 14(3) are mandatory and in terms thereof, the Commissioner must himself have reasons to suspect and that too before the seizure is made. It was further contended that the simultaneous recording of reasons with the act of seizure, as was done in that case, was also improper. It is true that the provisions of Section 14 of the said Act, have been found to be mandatory, by a Bench decision, in the case of State of West Bengal v. Sarda and Sons 81 CWN 312. It has further been observed in that case that the' non-communication of an order of extension of time for the retention of documents, etc., seized under Section 14 of the said Act, beyond the period prescribed for such retention would make such retention unauthorised, illegal, irregular and void, apart from being without jurisdiction.

17. Apart from referring to the determinations in the above case, further reference was made by the petitioner to the determinations in the case of State of West Bengal v. Oriental Rubber Works 1977 Tax LR 5, wherein it has also been observed that the seizure under Section 14(3) can be made on objective considerations, e. g., evading the payment of tax or on detection of such avoidance or evasion. In fact, the above were found to be preconditions for seizure. In that case, it was further contended that it would be no compliance with the provisions of the statute, if by merely quoting the language of the section and then seizing the documents is done and the reasons, as recorded, must themselves indicate that they are so recorded, based on objective consideration, apart from the fact that they must indicate the nature and relevance of the documents sought to be seized, having regard to the object for the seizure and must also refer to the circumstances, for which, it was considered necessary to seize them.

18. In the case of Ogarhmull Choudhury and Co. v. Commercial Tax Officer [Civil Rule No. 4186 (W) of 1973 decided on 23rd May, 1978-Calcutta High Court] page 126 infra, the delegation of powers by the Commissioner to the Inspectors concerned was not produced, and as such, it was observed that in the absence of such documents, it would not be safe to hold that there was proper and due delegation. That apart, considering the provisions of the said Act and the Rules as framed thereunder, it was found that the satisfaction of the Commissioner, which should be a personal one, is a prerequisite for the action to be taken and if such action is resorted to, the same would not be reasonable, as it should be the personal satisfaction of the Commissioner, which is required, for necessary initiation and the satisfaction of the Inspector in that case (which incidentally was also the fact in this case) cannot certainly be the satisfaction of the Commissioner. It has also been observed that such satisfaction being the personal satisfaction of the Commissioner would not be covered by Rule 71. It has further been observed in the case that apart from such personal satisfaction, other powers as in Section 14(3) can be delegated in terms of the said Rule 71. The above determinations were made following the determinations in the case of Prahlad Ram v. State (Criminal Revision No. 828 of 1960), an unreported judgment of the Patna High Court dated 6th October, 1960, which again was made on the basis of the determinations in the case of Chandrika Sao Hazari Lal v. State of Bihar [1963] 14 STC 398 (SC), which, incidentally, has laid down that reasons must be recorded in writing by the Commissioner and that too, to the effect that the dealer was attempting to evade payment of tax and furthermore, in the absence of such recording, the seizure as made would be illegal. There is also no doubt that suspicion, which is the basis of the formation of opinion, must be held in good faith and the same cannot be a mere pretence. So, I am also of the view that in order to attract the section or to act under the same, something more than suspicion would be required and that apart, it must be found out, if such suspicion was formed or entertained reasonably as a reasonable man. It is of course true that mere attempt to evade tax would expose the dealer to the action to be taken by the Commissioner in the way and manner as indicated and in terms of the observations of the Supreme Court in the case of Mangat Raiv. State of Madhya Pradesh : [1970]2SCR151 , the seizure under the said Act would mean something different, as such seizure would mean that the Commissioner would take into his possession the account books and take them outside the possession of the assessee. It should also be noted that in view of the determinations in the case of Gian Chand v. State of Punjab : 1983(13)ELT1365(SC) , seizure would mean taking possession of seized articles contrary to the wishes of the assessee and mere holding of books found lying in the possession of the assessee for perusing them cannot properly be regarded as seizure in terms of the determinations in the case of Chandrika Sao Hazari Lal v. State of Bihar [1963] 14 STC 398 (SC).

19. In this case, admittedly, repeated sanctions for retention of the records as seized beyond the statutory period were obtained without any notice or opportunities to the petitioners, apart from the fact that the original of the authorisation was not produced and there is no appropriate legal evidence available in respect of the satisfaction of or by the Commissioner. As such, I find that the present case comes fairly and squarely within the determinations in the case of Ogarhmull Choudhury and Co. v. Commercial Tax Officer [Civil Rule No. 4186 (W) of 1973 decided on 23rd May, 1978-Calcutta High Court] page 126 infra, which was made on the basis of the other determinations, as referred to hereinbefore. I further hold, on the facts of this case, that there was no satisfaction duly made before the seizure in question by the Commissioner to the effect that the dealer was attempting to evade payment of tax and the retention of the books in the circumstances, as indicated above, was also improper.

20. As such, the arguments of Mr. Dutta, appearing on behalf of the respondents, fail, so also the Rule should succeed and, thus I make the same absolute. There will be no order as to costs.

21. This order will not of course prejudice the respondents now from proceeding further or taking any steps in accordance with law.


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