9911796707
TMI Blog1973 (8) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... n the prescribed manner. Sri S.K. Chatterji, Commercial Tax Officercum-Investigating Officer of the Bureau, being respondent No. 4, by an order dated 3rd February, 1973, called upon the petitioner to produce all his books and papers for all unassessed periods. On 6th February, 1973, the petitioner appeared with the books of account before respondent No. 4, who noticed certain irregularities in the transactions recorded. Some books which were produced by the petitioner on that date were left at the office of respondent No. 4 for scrutiny. When the petitioner appeared on 13th February, 1973, Sri S.B. Ghatak, Inspector-cum-Investigator of the Bureau, seized the books of account left by the petitioner on the earlier date and a seizure receipt dated 13th February, 1973, was supplied to the petitioner. Thereafter, respondent No. 4 wrote a letter to the petitioner alleging that he was carrying on business from a clandestine place at 9, Lall Bazar Street, although the registration under the Act has been granted in respect of the place at 60, Beg Bagan Row. By the aforesaid letter the petitioner was requested to comply with certain requisition made in the said letter. The petitioner sent a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of West Bengal, the Bureau in the Finance Department was constituted for the purpose of investigation of cases of evasion of sales tax as well as malpractices connected therewith. The composition of the Bureau will be as follows: (i) A Special Officer who will have ex-officio status of Additional Commissioner of Commercial Taxes will work in close liaison with the Commissioner of Commercial Taxes. (ii) A Superintendent of Police having jurisdiction over the entire territory of West Bengal including the city of Calcutta. He will work under the guidance of the Special Officer and the overall control of the Finance Department. (iii) Such number of officers and staff as may be considered necessary and sanctioned by the Governor from time to time to assist the Special Officer and the Superintendent of Police in the discharge of their duties. By Notification No. 4422-F. T./IB-116/70-ST dated 7th August, 1970, it was announced that as the duties and functions to be performed by the officers of the Bureau will be more or less identical with those of the officers of the Commercial Tax Directorate, it had been decided by the Government that in the interest of smooth and efficient ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eau under the Finance Department for a period of six months with effect from the date he actually assumed charge. The said notification being No. 4026F.T. dated 7th July, 1970, cancelled the earlier Notification No. 776-F.T. dated 23rd February, 1970. By a Notification No. 2294-F.T. dated 30th May, 1970, the Governor sanctioned the creation of the following temporary posts in the Bureau in the time scale of pay noted against the said posts with effect from the date on which the posts are actually filled up: Name of the post No. of post Scale of pay (1) Commercial Tax (1) Rs. 325-30-475-35-1000 Officer-cum-InvestiOne (E. B. after 8th and gating Officer 16th stages). (2) Inspector-cum(2) Rs. 200-10-400 Investigator Two (E. B. after 10th stage). By a Notification No. 2417-F.T. dated 5th June, 1970, the Governor appointed Sri Suboth Chatterji, Commercial Tax Officer, Grade-I, as Commercial Tax Officer-cum-Investigating Officer in the Bureau and posted him there with effect from the date he assumed charge until further order. Similarly, by a Notification No. 1450-F.T. dated 23rd April, 1971, Sri Sanjib Bhusan Ghatak, a permanent Inspector of Commercial Taxes was appointed as Ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aced in support of this view upon an unreported decision of Sabyasachi Mukharji, J., in the case of S.N. Jaki and Another v. Investigation Officer and Others (Matter No. 236 of 1971). It is now necessary to examine the second contention raised by the learned counsel for the petitioner. It is submitted that respondents Nos. 3 to 5 having been appointed officers of the Bureau had ceased to function as officers under the Act and as such cannot exercise any of the duties and powers under the Act. Consequently, the seizure made on 13th February, 1973, by respondent No. 5 is illegal and without jurisdiction. In the unreported case of S.N. Jaki v. Investigation Officer and Others (Matter No. 236 of 1971), it appears that this contention in its present form was not canvassed before Sabyasachi Mukharji, J. It was not, therefore, necessary in that case to examine the validity of the above contention. An examination of this question requires an analysis of the relevant provisions of the Act under which different authorities are charged with the administration of the Act. For carrying out the purposes of the Act the State Government is authorised to appoint a person to be the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lates or not, provided he is otherwise competent to deal with such case or matter in exercise or the performance of the powers or duties conferred upon him. The above analysis of the different provisions of the Act shows that a person appointed under section 3(1) of the Act in order to discharge his statutory powers and duties under the Act must satisfy the following conditions: (a) Such a person must be under the statutory control of the Commissioner who is vested with all the powers under the Act. (b) Such a person being subordinate to the Commissioner in his administrative jurisdiction is to assist him in respect of the powers which are delegated to him under section 15 of the Act read with rule 71 of the Rules. (c) The area over which such a person is to exercise his jurisdiction is specified by the State Government but the power that he will exercise can only be conferred by the Act and the duties which he is to perform are to be required by the Act. (d) If a person does not remain as an officer of the Commercial Tax Directorate which is under the administrative control of the Commissioner under the Act and is appointed in some other post, he ceases to be a statutory a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th June, 1970, the Governor appointed him as Commercial Tax Officer-cum-Investigating Officer in the Bureau and posted him there with effect from the date he assumed charge until further order. The post of Commercial Tax Officer-cum-Investigating Officer was a new post created by the notification dated 30th May, 1970, in the Bureau. It was a temporary post which continued to exist by notifications issued from time to time. In the copy which has been forwarded to the Accountant-General, West Bengal, it is pointed out that he had been appointed against the post created by the notification dated 30th May, 1970. It is also stated that he will draw his pay and other allowances drawn by him as Commercial Tax Officer, Grade-I. In the copy forwarded to the Commissioner, it is stated that necessary steps for releasing the officer may be taken at an early date. A copy of the order had also been forwarded to Sri N.C. Biswas, Special Officer in the Bureau, for information. Similar orders were also issued regarding the appointment of Sri S.B. Ghatak, permanent Inspector of Commercial Taxes, as Inspector-cum-Investigator in the Bureau. In the notification dated 23rd April, 1971, it is stated tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Bureau, which does not form part of the Commercial Tax Directorate, provision has to be made for the retention of his lien in the office of the Inspector of Commercial Taxes, which he was holding prior to his appointment. If Sri S.K. Chatterji and Sri S.B. Ghatak were holding the posts of Commercial Tax Officer and Inspector respectively in the Commercial Tax Directorate and were entrusted with the additional work of an Investigating Officer or an Investigator under the Bureau there could not have been any question of instructing the Commissioner to release them from their respective posts. In fact, the notification dated 30th May, 1970, makes it clear that the posts of Commercial Tax Officer-cum-Investigating Officer and Inspector-cum-Investigator are new posts created not in the Commercial Tax Directorate, but in the Bureau in the Finance Department. It is in this context that one can understand why a note has to be forwarded to the Accountant-General, West Bengal, that while holding the new posts Sri S.K. Chatterji and Sri S.B. Ghatak will draw their pay and other allowances drawn by them as Commercial Tax Officer and as Inspector of Commercial Taxes respectively. If they w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 3 to assist the Commissioner. They have now been appointed to the posts of Commercial Tax Officer-cum-Investigating Officer and Inspector-cum-Investigator under the Bureau and although they may be described as Commercial Tax Officer and Inspector respectively, they have ceased to be such officers of that designation under the Act and as such are incompetent to exercise any power and perform any duty as are required by the Act under section 3(2). I shall now examine the appointment of Sri N.C. Biswas, respondent No. 3. By a memo No. 775-F.T. dated 23rd February, 1970, a temporary gazetted post of Additional Commissioner of Commercial Taxes-cum-Special Officer in the Bureau was created and by an order dated 23rd February, 1970, the Governor appointed Sri N.C. Biswas, Additional Commissioner of Commercial Taxes, to officiate in the post of Special Officer and ex-officio Additional Commissioner of Commercial Taxes in the newly constituted Bureau for a period of six months with effect from the date he assumed charge. By a subsequent notification dated 7th July, 1970, the sanction of the said post was extended and by another notification of the same date, Sri N.C. Biswas was t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the respondents stated that respondent No. 3 has granted the sanction on 27th February, 1973, for the retention of the books up to 30th June, 1973, and by another order dated 21st May, 1973, sanctioned the further retention of the books up to 31st December, 1973. He contends that such a sanction being an administrative act, requires no communication to the petitioner. In the present case, the books having been seized on 13th February, 1973, admittedly, 21 days have expired before the petitioner moved this court on 17th May, 1973. Under rule 70 of the Rules, if an Inspector or a Commercial Tax Officer seizes any books of accounts or documents under section 14, he shall not retain them beyond 21 days without the written sanction of the Assistant Commissioner. No Inspecting Officer shall retain such books for more than 42 days without the sanction of the Commissioner. If the Commissioner grants any such sanction, under section 20(3), an aggrieved person may make an application for revision of the said order before the Board of Revenue. Before any order is passed by the Board of Revenue likely to affect the petitioner adversely, it will give a reasonable opportunity of being heard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an administrative approval by the State Government and need not be communicated. In my view, the said decision is hardly of any assistance in the present case. The aforesaid decision rested upon the interpretation of section 3(3) of the Preventive Detention Act, 1950. Under the said section, if any order of detention is made by an officer, he shall forthwith report the fact to the State Government together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter and no such order made under the said Act shall remain in force for more than 12 days after making thereof unless in the meantime it has been approved by the State Government. The Supreme Court pointed out that the scheme of the Preventive Detention Act is merely to approve the original detention by the District Magistrate and the continued detention after 12 days is not under any fresh order but the same old order with the added approval and what the detenu can question, if he be so minded, is the original detention and not the approval thereof. This decision, in my view, is of little assistance in the present case because the provisions of the Preventiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cating the order to the aggrieved party. In both the cases, it has been held that such an order of approval until communicated cannot be said to be an effective order. In my view, the principle decided in both the cases applies with equal force to the present case. In my view, an order of sanction made by the Commissioner under rule 70, until it is communicated to the aggrieved party does not become a valid and effective order. The Commissioner can sanction the retention of the books seized for such time as may be considered to be proper for the purposes of the Act. The aggrieved party is prejudicially affected by such an order and the statutory right of making an application for revision is rendered ineffective and illusory if such an order is not communicated to him. As, in the present case, the order of sanction granted by the Additional Commissioner was admittedly not communicated to the petitioner, the retention of the books after 21 days is without any valid order of sanction and as such is illegal and without jurisdiction. It is not necessary for me to decide whether in according sanction under rule 70, the Additional Commissioner has to proceed in a quasi. judicial manner ..... X X X X Extracts X X X X X X X X Extracts X X X X
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