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Ogarhmull Choudhury and Company Vs. Commercial Tax Officer and Bureau of Investigation and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 4186 (W) of 1973
Judge
Reported in[1982]50STC126(Cal)
AppellantOgarhmull Choudhury and Company
RespondentCommercial Tax Officer and Bureau of Investigation and ors.
Cases ReferredState of West Bengal v. Oriental Rubber Works
Excerpt:
- .....seizure is a must and for that no request is necessary or needed.12. under section 14(3), seized books and documents cannot ordinarily be retained beyond twenty one days without the written sanction of the assistant commissioner and forty-two days without the sanction of the commissioner, in terms of rule 70. such sanction by the commissioner may also be oral. in any event, the terms of section 14(3) are mandatory and cast an obligation upon the inspecting officers not to retain the books after such periods as mentioned. these apart, as observed in the case of state of west bengal v. sarda and sons 81 cwn 312, the non-communication of an order of extension of time for the retention of documents and records, seized under section 14 of the said act, beyond the period prescribed for such.....
Judgment:

M.N. Roy, J.

1. In this application, the petitioner has impeached the search and seizure dated 3rd August, 1973, made under Section 14(3) of the Bengal Finance (Sales Tax) Act, 1941 (hereinafter referred to as the said Act).

2. The petitioner, Ogarhmull Choudhury and Company (hereinafter referred to as the said petitioner), is a firm duly registered under the Indian Partnership Act, 1932, with its partners, Ogarhmull Choudhury and Bimal Kumar Choudhury. The said petitioner at all material times carried and still carries on business as merchants and commission agents and deals in grains and pulses. It has been stated that such business is being carried on by the said petitioner from Deewali S. Y. 2026 corresponding to 10th November, 1969, and the accounting year ends on Kartik Badi 14 of each Sambat year. It has been stated that the said petitioner never carried nor carries on business of selling in goods which are liable to tax under the said Act and in fact the pulses, mustard seeds and mustard oil sold by it are not liable to tax under the provisions of the said Act and as such the petitioner has stated that it did not apply for and get itself registered as a dealer under the said Act. It has also been stated that the petitioner was and is not liable to pay any tax in respect of any sale of the said goods under the provisions of the said Act and as such it was and is not liable to be registered under the provisions of the said Act. This statement of the said petitioner has of course been denied by the answering respondents in their affidavit-in-opposition dated 25th July, 1975. It has been stated by the deponent to the said affidavit, that apart from selling non-taxable goods, the said petitioner also sold taxable goods, such as groundnuts, which has also having attracted the law to pay tax under the said Act, was required to apply for and get itself registered and to obtain a certificate of registration in conformity with the provisions of the said Act. The said deponent has stated that the said petitioner, having failed to do so, would not be entitled to the reliefs as claimed or to maintain this petition for the prayers as made.

3. Admittedly, there was ex parte assessment by the Commercial Tax Officer, Central Section, against the petitioner, for the periods for the 4 quarters ended Kartik Badi 14, Sambat years 2028 and 2029. Those assessments have been alleged by the said petitioner to be void ab initio, illegal and without jurisdiction apart from the fact that they were in violation of the principles of natural justice and were mala fide too. However, being dissatisfied with the said assessment orders, the said petitioner preferred necessary appeals to the Assistant Commissioner, Commercial Taxes, Central Section, and those appeals have been stated to be pending. The said petitioner has also stated that on or about 7th May, 1973, it made separate applications for stay of realisation of the amounts, which according to it, were wrongfully assessed by the Commercial Tax Officer concerned, until the final disposal of the connected appeals and by the letter of 14th May, 1973, it was informed that by 3 separate orders, all dated 12th May, 1973, the 3 stay petitions, as mentioned hereinbefore, have been rejected. Against such determinations, a rule being Civil Rule No. 1555 (W) of 1973 was obtained by the said petitioner. In the said rule an ad interim order was also obtained by the said petitioner and such fact, according to it, has been duly communicated to the respondents concerned, including the Commissioner of Commercial Taxes, West Bengal, who is respondent No. 3 in this proceeding. The said petitioner has further alleged that since the issue of the said rule and the ad interim order as aforesaid, the authorities concerned, who are respondents herein, are harassing it in many ways and are interfering with the conduct of its business.

4. Admittedly, on 3rd August, 1973, at about 12-15 p. m., Sarbasree P. G. Saha, P. Ghose Roy, representing them to be the Inspectors of Commercial Taxes- Investigation, Bureau of Investigation, along with other persons visited the office of the said petitioner at No. 26, Burtolla Street, Calcutta (hereinafter referred to as the said office), and searched the same. This search has been stated by the answering respondents to have been conducted for making an investigation against the said petitioner as a dealer. The said petitioner has alleged that the officers, as mentioned hereinbefore, entered the cash room and brought out all the account books, bill books, chalan books, files, telegram books and other documents and papers, and examined them minutely and in great detail and thereafter purported to harass them apart from removing several books, diaries, exercise books and files. It has been alleged by them that a seizure list containing the particulars of the books and records, as seized, was prepared. It has also been alleged that these officers required a partner of the said petitioner, viz., Sri Ogarhmull Choudhury, to put his signature on a paper written in English, without reading over or explaining the contents of the same or furnishing him with a copy thereof. It may be mentioned that the said petitioner has alleged that its partner, the said Ogarhmull Choudhury, does not know English. The answering respondents in their opposition have mentioned that the search was conducted in the presence of Ogarhmull Choudhury and it appeared on preliminary examination of such records and documents by the officers concerned that the said petitioner was a dealer and had attracted law to pay tax under Section 4(2) of the said Act and even in spite of such fact, it has carried on business without getting itself registered and possessing registration certificate which was required in terms of the provisions of Section 7 of the said Act. This action on the part of the said petitioner, the answering respondents have stated, to have been taken with a view to evade the payment of sales tax. The answering respondents have also made it clear that those officers who were and are Inspectors of Commercial Taxes, Bureau of Investigation, then seized the records and documents in question under Section 14(3) of the said Act, prepared a list of them and handed over a copy thereof to the said petitioner through the said Sri Ogarhmull Choudhury. It has also been contended by the answering respondents that although the inspection report was written in English by the officers concerned and who were so empowered, the contents of the same were read over and explained by the said officers to the said Sri Ogarhmull Choudhury.

5. The seizure as aforesaid and as made under Section 14(3) of the said Act, has been contended by the said petitioner to be invalid, irregular, bad, void and without jurisdiction, apart from that fact that the same was made without the authority of law inasmuch as the satisfaction of the Commissioner which is required in terms of the said section, was not duly entered before the seizure in question. If fact, it has been submitted that the prerequisites under Section 14(3) of the said Act were absent and as such the action as taken was void ab initio. These averments have also been categorically denied by the answering respondents and it has been contended by them that Sarbasree P.G. Saha and P. Ghose Roy were duly delegated with the powers of the Commissioner and they were satisfied in the instant case. It has also been contended that since those officers were satisfied and that too on the basis of delegation as made, so their satisfaction must be regarded as the satisfaction of the Commissioner concerned. The report showing the satisfaction by the officers concerned was looked into from the record and the same reads 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.

6. It may bementioned that the report as aforesaid was made on the letter head of Ogarhmull Choudhury. On the right hand top corner of the same there is a note : 'Seen dated 3rd August, 1973' and the signature is illegible.

7. I am told by Mr. Dutta that the said signature is of the Commercial Tax Officer concerned. The reason recorded for the suspicion in terms of Section 14(3) of the said Act and which is the basis of the seizure in question, is to be found in annexure A to the main petition. The said annexure A, on a reference to the reasons of seizure through seizure memo No. 295 dated 3rd August, 1973, appears to be incorrect. The true contents of the seizure memo runs thus:

As we have reason 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).

_________________________________________________________________

Total 4 (four) items in 8 (eight) pieces only.

Sd/- P. Ghose Roy

3-8-73

Received copy. Sd/- P.G. Saha

3-8-73

Inspectors of Commercial Taxes-cum-

Investigation, Bureau of Investigation,

Stephen House, 4th Floor, Calcutta-1.

Dt. 3-8-73

Time 5-30 P.M.

Signature...

8. On a reference to the reasons as recorded, particulars whereof have been incorporated hereinbefore, Mr. R. N. Datta appearing in support of the rule, apart from contending on the illegality and irregularity of the said reasons, and seizure conducted on the basis thereof, submitted that the reasons as recorded were no reasons at all and that apart, the officers concerned could not have those reasons so recorded as a delegate of the Commissioner. He also submitted that the reasons so recorded by such delegates of the Commissioner concerned, were also bad, as the same could not have been effected on such delegation. He also submitted that the excessive delegation, as in the instant case, was improper. Mr. Datta further submitted that the provisions of Section 14(3) of the said Act are mandatory and in terms thereof, the Commissioner himself must have reasons to suspect and that too before the seizure in question. He also submitted that the simultaneous recording of reasons with the act of seizure, as was done in the instant case, was improper. On the question of interpretation of Section 14 and the power of the Commissioner, so also the requirements under the said section, Mr. Datta first relied on the case of State of West Bengal v. Sarda and Sons 81 CWN 312, wherein this Court has observed that provisions of Section 14 and the Sub-section of the said Act are mandatory. He also relied on the determination in the case of State of West Bengal v. Oriental Rubber Works 1977 Tax LR (Notes) 5, wherein it has been observed that the seizure under Section 14(3) of the said Act can be made on an objective consideration, viz., relevancy of the documents to suspect cause of evasion of payment of tax under the Act as the necessity of seizing them for detection or avoidance of such evasion. Furthermore, the reasons adversely based on such objective consideration are to be recorded. It would be no compliance with the provisions by merely quoting the language of the section and then seizing the documents. It was submitted that the reasons recorded must by themselves indicate that they are so recorded, based on objective considerations. 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 in which it is considered necessary to seize them. The Sub-section does not furnish any legal sanction for indiscriminate seizure and in the absence of any fact furnished, the very object of the provisions would be defeated and furthermore the reasons cannot be a mere recital of the language of the section. The said petitioner has in fact challenged the validity of the search and seizure dated 3rd August, 1973, under Section 14(3) of the said Act, contending, inter alia, amongst others that there was no material for formation of the belief that they were attempting to evade payment of any tax. It has been asserted, as stated herein before, that the condition precedent for the seizure was not fulfilled also. It was further submitted by Mr. R. N. Datta that the retention of the books beyond the statutory period was illegal.

9. Mr. Samarendra Nath Datta, appearing for the answering respondents, on reliance to the scheme of the said Act and more particularly Sections 7, 11, 12, 15, 20 and Rule 71 submitted that the delegation of powers by the Commissioner to the officers concerned or the Commercial Tax Officer, as in the instant case, was possible and permissible. He submitted with reference to the report that the same, on due delegation of powers, was made by the officers concerned on 3rd August, 1973, and the same was duly approved by the Commercial Tax Officer on 6th August, 1973. The fact . about the search and seizure by the Inspecting Officers have not been disputed and it has been stated that it appeared on preliminary examination of the records by those officers, that the said petitioner as a dealer had attracted liability to pay tax under Section 14(2) of the said Act; in fact they have carried on their business without having themselves registered and possessing a registration certificate. This action was stated to have been taken for evading the tax liability and responsibility. The drawing of the report under Section 14(3) by those officers and the seizure thereunder and not under Section 14(1) has also been admitted. The respondents have further stated that the documents were retained beyond 21 days and/or 42 days from the date of seizure after obtaining sanction of the Additional Commissioner of Commercial Taxes, Bureau of Investigation, in terms of the provision of Rule 70 as in force at the relevant time and later on under Section 14(3A) of the said Act, which is to the following effect:

(3A) The Commissioner shall grant a receipt for any of the accounts, registers or documents seized by him under Sub-section (3) and shall retain any of them only for such period as may be necessary for examination thereof or for prosecution or for any of the purposes of this Act.

Provided that-

(a) the Commissioner shall not retain any of the accounts, registers or documents seized by him under Sub-section (3) for a period exceeding one year from the date of the seizure unless he records, in writing, the reasons therefor, and

(b) any person, appointed to assist the Commissioner under Sub-section (1) of Section 3, shall not retain any of the accounts, registers or documents seized by him under Sub-section (3) for a period exceeding one year from the date of seizure unless he states the reasons in writing therefor and obtains sanction, in writing, of the Commissioner in respect thereof:

Provided further that where any such accounts, registers or documents were seized more than one year before the date of commencement of the Bengal Finance (Sales Tax) (Amendment) Ordinance, 1973, such accounts, registers or documents may be retained for a further period of three months from the date of such commencement without recording any reason, or without recording any reason and obtaining any sanction of the Commissioner, as the case may be.

10. Rule 70 requires that if an Inspector or a Commercial Tax Officer seizes any books of accounts, registers or documents under Section 14, he shall not retain them beyond twenty-one days without the written sanction of the Assistant Commissioner and no inspecting officer shall retain such books for more than forty-two days without the sanction of the Commissioner. Such sanction has been contended to have been granted duly and in appropriate exercise of power and jurisdiction, apart from on due application of mind. It has also been contended that in granting such sanction, the principles of natural justice, as alleged, have not been violated. It has further been stated by the respondents that the Commercial Tax Officer concerned, at all material times and even on the date of the search and seizure, did not cease to be an officer under the said Act and the contentions as raised on that behalf were categorically denied. These apart, it was submitted by the respondents that the West Bengal Ordinance No. 5 of 1973 or the provisions thereunder were valid legislations and duly empowered the Bureau of Investigation to take actions, as were taken in the instant case.

11. The satisfaction under Section 14(3), as observed in the case of Prahlad Ram v. State (Criminal Revision No. 828 of 1960 decided by the Patna High Court on 6th October, 1960) and as referred to in the case of Chandrika Sao Hazari Lal v. State of Bihar [1963] 14 STC 398 (SC), must be recorded in writing by the Commissioner and that to the effect that the dealer was attempting to evade payment of tax and in the absence of such recording, the seizure as made would not be legal. It cannot be doubted that such suspicion must be held in good faith and the same cannot merely be a pretence. Thus, in order to attract the section or to act under the same, something more than suspicion is required and that apart, it must be found out whether such suspicion was formed reasonably or the reasons for such suspicion were the reasons of a reasonable man. It is true that even mere attempt to evade tax would expose the dealer to the action to be taken by the Commissioner in the way and the manner as indicated above. In terms of the determinations of the Supreme Court in the case of Mangat Rai v. State of Madhya Pradesh [1970] 26 STC 1 (SC), the seizure under the said Act would mean something different because such seizure would mean that the Commissioner would take into his possession the account books and take them outside the possession of the assessee. As observed by the Supreme Court in the case of Chandrika Sao Hazari Lal v. State of Bihar [1963] 14 STC 398 (SC), mere holding of books found lying in the possession of the assessee, for perusing them cannot properly be regarded as seizure. In view of the determinations of the Supreme Court in the case of Gian Chand v. State of Punjab AIR 1962 SC 496 seizure would mean taking possession of seized articles contrary to the wishes of the assessee. The grant of a receipt for seizure is a must and for that no request is necessary or needed.

12. Under Section 14(3), seized books and documents cannot ordinarily be retained beyond twenty one days without the written sanction of the Assistant Commissioner and forty-two days without the sanction of the Commissioner, in terms of Rule 70. Such sanction by the Commissioner may also be oral. In any event, the terms of Section 14(3) are mandatory and cast an obligation upon the inspecting officers not to retain the books after such periods as mentioned. These apart, as observed in the case of State of West Bengal v. Sarda and Sons 81 CWN 312, the non-communication of an order of extension of time for the retention of documents and records, seized under Section 14 of the said Act, beyond the period prescribed for such retention, makes the retention unauthorised, illegal, irregular and void. The approval as and if obtained, must also be made known to the assessee for enabling him to file objections and in the absence of such act, the retention would become void and inoperative. It is also the view of this Court in the case of State of West Bengal v. Oriental Rubber Works 1977 Tax LR (Notes) 5 that:

Seizure under Section 14(3) can be made only on an objective consideration, viz., relevance of the documents to suspected case of evasion of payment of tax under the Act and the necessity of seizing them for detection or avoidance of such evasion. Furthermore, the reasons obviously based on such objective considerations are to be recorded. It would be no compliance with the provision to merely quote the language of the Sub-section and then seize the documents. Reasons recorded must by themselves indicate that they are so recorded based on objective consideration. 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 circumstances in which it is considered necessary to seize them. The Sub-section does not furnish any legal sanction for indiscriminate seizure. In the absence of any factual foundation for the reasons given, mere recital of the language of the Sub-section would defeat the very object of the provision.

13. There are no doubt statements contrary to the aforementioned submissions of Mr. R. N. Datta. But one thing is certain that the powers under Section 14(3) were said to be delegated to the officers, who are Inspectors of the department concerned and it is they, who were satisfied in the instant case and not the Commissioner, and their satisfaction, on such delegation, has been deemed to be or taken as the satisfaction of the Commissioner concerned. The terms of such satisfaction has been incorporated hereinbefore and the said satisfaction appears to have been seen by the Commercial Tax Officer concerned on 6th August, 1973. Thus, the point whether such delegation of power, as argued by the respondents, to be possible and permissible will have to be found out and determined first.

14. On the question of delegation, Rule 71 of the Rules as framed under the said Act, would be of relevant consideration. The powers under Section 14 cannot be delegated to any officer below the rank of Inspector of Commercial Taxes. Thus, delegation in specific cases as mentioned in item serial Nos. 8, 9, 10 and 11 of the said Rule 71 is possible and permissible. So the contentions of the respondents that such delegation was possible and permissible are of substance and at least considered to be so, if the necessary delegation is proved and established. In view of the above, and more particularly in terms of entry serial No. 11 under the said Rule 71, the Inspectors could be authorised to exercise all powers under Section 14(3) of the said Act, which were exercisable by the Commissioner, including the formation of the opinion regarding the laches of the dealer, for the purpose of taking necessary steps for seizure. The bona fide for such reasons should not ordinarily be interfered with or looked into. Such formation of opinion or entering the satisfaction can of course be looked into or interfered with, if they are perverse, impossible, irregular and arrived at on total non-application of mind and are reasons, not of a reasonable man and are also baseless, apart from the fact that there were no materials for the formation of the belief that the dealer was attempting to evade payment of any tax. The formation of belief is certainly a condition precedent for the exercise of powers under Section 14(3). The reasons for the seizure in the instant case, as annexed to the petition, is not a correct one and the correct reasons have been incorporated hereinbefore, from the records as produced. The delegation of powers by the Commissioner in the instant case and to the Inspector as referred to hereinbefore, which he had power to do, has not been produced. In the absence of such document or record, I am of the-view that it would not be safe to hold that there was due or proper delegation. These apart, considering the provisions of the said Act and the Rules as mentioned hereinbefore, I am of the view that the satisfaction of the Commissioner, which is a personal one and is a prerequisite for the action to be taken, cannot be delegated. At least such action, if resorted to, would not be reasonable, as it is the personal satisfaction of the Commissioner, which is required for necessary initiation and the satisfaction of the Inspectors, as in the instant case, cannot certainly be the satisfaction of the Commissioner. Such satisfaction, being the personal satisfaction of the Commissioner, would not be covered by Rule 71 as aforementioned. Apart from such personal satisfaction, other powers as in Section 14(3) of the said Act can be delegated under the provisions of Rule 71.

15. In the instant case, the respondents have also pleaded that the documents and records as seized were retained beyond the statutory period with the due sanction of the appropriate authorities and in support of the same they produced the order dated 30th September, 1976, by the Additional Commissioner of Commercial Taxes, Bureau of Investigation. But there is no appropriate evidence to show that such order of extension of time for the retention of the documents and records as seized was appropriately communicated to the dealer and as such the retention of the seized records beyond the prescribed time made the retention, as submitted by Mr. R. N. Datta, unauthorised, void, illegal and irregular on the basis of the determinations as mentioned above. There is ample substance to such arguments of Mr. R. N. Datta.

16. In view of the above and when admittedly there was no satisfaction before the seizure by the Commissioner that the dealer was attempting to evade payment of any tax, and in fact, when admittedly there is no such recording by the Commissioner, the rule should succeed. I order accordingly and make the rule absolute. There will be no order as to costs. Let appropriate writs be issued.

17. This will not however prevent or prejudice the respondents from taking such or any further steps according to law, as they would be entitled to take.

18. The certified copies of the records which were filed by Mr. S. N. Dutta on 28th March, 1978, be kept in the record.

19. Stay of operation of the order as prayed for is refused.


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