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Ogarhmull Chodhury and Co. 26, Burtolla Street, Calcutta Vs. the Commercial Tax Officer, Bureau of Investigation, Finance (Taxation) Department, Stephen House, 4th Floor, Dalhousie Square East, Calcutta-1 and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 4186W/73
Reported in(1976)5CTR(Cal)0331B
AppellantOgarhmull Chodhury and Co. 26, Burtolla Street, Calcutta
RespondentThe Commercial Tax Officer, Bureau of Investigation, Finance (Taxation) Department, Stephen House, 4
Excerpt:
- .....that there were no materials for formation of the belief that the petitioner was attempting to evade payment of any tax. it is, therefore, alleged in paragraph 13 of the petition that the condition precedent for the said seizure was not fulfilled. on behalf of the respondents no affidavit in answer to the rule nisi has been filed. no prayer was made also for time, to file any affidavit. counsel for the respondents, however, relied on the reasons recorded in the seizure-list as the ground for seizure. the said seizure-list recorded as follows :'as i/we have reasons to suspect that m/s. ogarhmull chowdhury & co. of 26, burtolla street, calcutta-7 (unregistered) following accounts and records of the said dealer from shri ogarhmull chowdhury, partner under section 14(3) of the said act,.....
Judgment:
ORDER

Sabyasachi Mukharji J. - In this application the petitioner is challenging the search and seizure dated the 3rd of August, 1973 under section 14(3) of the Bengal Finance (Sales Tax) Act, 1941. It has been alleged that there were no materials for formation of the belief that the petitioner was attempting to evade payment of any tax. It is, therefore, alleged in paragraph 13 of the petition that the condition precedent for the said seizure was not fulfilled. On behalf of the respondents no affidavit in answer to the Rule nisi has been filed. No prayer was made also for time, to file any affidavit. Counsel for the respondents, however, relied on the reasons recorded in the seizure-list as the ground for seizure. The said seizure-list recorded as follows :

'As I/We have reasons to suspect that M/s. Ogarhmull Chowdhury & Co. of 26, Burtolla Street, Calcutta-7 (unregistered) following accounts and records of the said dealer from Shri Ogarhmull Chowdhury, Partner under section 14(3) of the said Act, as these are considered to be necessary for the purpose of taking action under the provision 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)'

Section 14(3) of the Bengal Finance (Sales Tax) Act, 1941 enjoins that if the Commissioner has reason to suspect that any dealer is attempting to evade payment of any tax under the Act, he may, for reasons to be recorded in writing, seize such accounts, registers or documents of the dealer as may be necessary. Therefore, for a valid seizure and search there must be some suspicion of the Commissioner or that the Commissioner must have some reason to suspect that the dealer is attempting to evade payment of taxes. Then he may for reasons to be recorded seize such accounts, registers, etc. Therefore, it is necessary for the Commissioner before the seizure to be satisfied that the dealer is attempting to evade payment of any tax. There is no such satisfaction recorded. No reasons for such satisfaction has also been produced before me. In the aforesaid view of the matter it must be held that the seizure was without any authority of law. I therefore set aside the seizure of the 3rd of August 1973 and direct the respondents to return the documents seized.

2. The Rule is made absolute to the extent indicated above. This order will not prevent the respondents from taking such steps in accordance with law as they are entitled to under the law. There will be no order as to costs.


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