9911796707
TMI Blog1976 (9) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... the said firm is a dealer within the meaning of section 2(c) of the Bengal Finance (Sales Tax) Act, 1941 (hereinafter referred to as the said Act), having registration certificate No. JK/2658-A. Apart from the said registration the said firm is also registered under the Central Sales Tax Act, 1956, having registration certificate No. 233-A(JK)(C). From a reference to the statements in the petition, it appears that the said firm was an assessee under the Acts as mentioned hereinbefore and was not a defaulter. It has been alleged that on or about 10th January, 1973, three persons introducing themselves as Inspectors of the Bureau of Investigation., respondents Nos. 1, 2 and 3 (hereinafter referred to as the said respondents), entered the premises of the said firm and wanted to search its office. It also appears that even in spite of the request made by the manager of the said firm, the search in question was conducted and in pursuance thereof the said respondents seized and took away various books of account, declaration forms, sale bills, challans, bank statements and other documents or papers. The said firm has alleged such search and seizure to be illegal, unauthorised, void apa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has further contended that the said respondents at all material times had no and still they have no power under the said Act to enter and se arch the business premises and to seize the records as mentioned hereinbefore and, in that view of the matter, the purported search and seizure made on 10th January, 1973, and all proceedings taken therein were and are illegal, invalid and without or in excess of jurisdiction. Relying on the provisions of section 14 of the said Act and the sub-sections thereunder, it was also contended that the period for retention of the books of account and other documents so seized could not, in any event, be beyond 21 days, if the seizure was made by the Inspector or Commercial Tax Officer and, in fact, such period had expired on 1st February, 1973, and, furthermore, the seized books of account and other documents, etc., could not also be retained more than 42 days by the Inspecting Officer, as such period had already expired on 22nd February, 1973. Thus it was stated that on the expiry of the said periods, the respondents had no competence, authority or jurisdiction to retain the seized books of account and documents in contravention of rule 70 of the Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere fact that there was no law for constituting the Bureau did not by itself affect the validity of the constitution of the Bureau, (ii) that the officials concerned having been released from the Commercial Tax Directorate and having been appointed to new posts under the Bureau had ceased to be the designated officers under the Commercial Tax Directorate and were not entitled to exercise any of the powers of such officers under the said Act, and (iii) that even assuming that the said officers could exercise the power under the said Act, the order sanctioning the seizure of the books beyond 21 days of the seizure not having been communicated to the petitioner, the retention of the books beyond 21 days was illegal and without jurisdiction", has made the rule absolute holding that the officers of the Bureau in the instant case ceased to be the officers under the said Act by reason of their appointment in the Bureau and the order of seizure made by respondent No.2assuchwasillegalandwithoutjurisdiction. It has further been held that, in any event, the books having been retained after the expiry of the period of 21 days from the date of seizure and sanctions, the entire action was vitiat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the date of such seizure, the question is the extent of power of the respondents under the provisions of section 14 of the said Act, to retain the documents and records so seized, beyond the time as prescribed, and the effect of non-communication of the sanction to retain beyond the statutory period of limitation and not on the other point, as the same has been duty determined by the Bench decision as mentioned hereinbefore and Mr. Dutta appearing for the respondents, in his usual fairness, has conceded that no such determination by us is required to be made on the point of the constitution, authority and competence of the Bureau as and so established. In support of the appeal, Mr. Roy, appearing for the appellants, contended that the retention of the documents beyond 21 days in the Instant case was legal and valid and in any event appropriate sanction for such retention beyond the statutory period was duly given in this case. He also submitted that considering the provisions of the said Act and the Rules framed thereunder it should have been held by the learned Judge in the trial court that such retention of the documents beyond 21 days in the instant case was not only proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se for any violation of the principles of natural justice, which incidentally was made the main plank of the arguments of the said firm in the rule. In support of his contentions, Mr. Roy submitted that the learned Judge in the trial court was wrong in his interpretation and application of the principles as enunciated in the decisions of the Supreme Court in the cases of Bachhittar Singh v. State of Punjab' and Bidya Deb Barma v. District Magistrate, TripuraA.I.R. 1969 S.C. 323. In the case of Bachhittar Singh v. State of PunjabA.I.R. 1963 S.C. 395., the appellant was appointed as a qanungo in the former State of Pepsu in the year 1950. On 1st December, 1953, he was appointed Assistant Consolidation Officer. Certain complaints having been received regarding tampering with official records, he was suspended and an enquiry was held against him by the Revenue Secretary of Pepsu Government. As a result of that enquiry, the Revenue Secretary dismissed him by order dated 30th August, 1956, on the ground that the appellant was not above board and was not fit to be retained in service. This order was duly communicated to the appellant. Thereupon, the appellant preferred an appeal befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt which was urged was that the order of the Revenue Minister of Pepsu having reduced the punishment from dismissal to reversion, the Chief Minister of Punjab could not sit in review over that order and set it aside. Two grounds were urged in support of the point. The first was that the order of the Revenue Minister of Pepsu was the order of the State Government and was not open to review. The second ground was that in any case it was not within the competence of the Chief Minister of Punjab to deal with the matter inasmuch as it pertained to the portfolio of the Revenue Minister. It has been observed by the Supreme Court on consideration of the relevant facts of the case that before something amounts to an order of the State Government, two things are necessary, viz., the order has to be expressed in the name of the Governor as required by clause (1) of article 166 of the Constitution and then it has to be communicated. The Constitution requires that the action must be taken by the authority concerned in the name of the Governor. It is not till this formality is observed that the action can be regarded as that of the State. Constitutionally speaking, the Minister is no more than ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would mean enough or at least substantial compliance with the provisions of the said Act and no communication of those reasons or the sanction would be necessary and required. It has been submitted on behalf of the said firm that under the provisions of the said Act, reasons for the search and seizure were not only required to be recorded but they were also required to be communicated to them and so also the subsequent sanction to any extension for retaining the records beyond the period of limitation and such submissions were made on the analogy of the decision of the Supreme Court in the case of Ajantha Industries v. Central Board of Direct Taxes[1976] 102 I.T.R. 281 (S.C.). The said case was one under section 127(1) of the Income-tax Act, 1961. The appellants in that case were assessees under the Income-tax Act, whose assessments were completed for a number of years In the usual course at Nellore. On 23rd January, 1973, the Central Board of Direct Taxes sent a notice to them under section 127 of the Act, proposing to transfer their case files "for facility of investigation" from the respective Income-tax Officer at Nellore to the Income-tax Officer, B Ward, Special Circle II, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt case and also contended relying on the language of section 127(1) of the Income-tax Act, 1961, and that of section 14(1) of the said Act, that the determination as made in the case of Ajantha Industries v. Central Board of Direct Taxes[1976] 102 I.T.R. 281 (S.C.). would not hold good in the instant case. He submitted that since in section 14(1) of the said Act there is no mention about any communication of the order or the sanction for extension of the time to retain the documents as seized thereunder, so the determination by the Supreme Court in the case as mentioned hereinbefore and the more so on the basis of the specific requirements of section 127(1) of the Income-tax Act, would have no application. Mr. Roy, on the other hand, relying on the determination in Bidya Deb Barma v. District Magistrate, Tripura A.I.R. 1969 S.C. 323., submitted that since the order made under section 14(1) of the said Act or the sanction to extend the time to retain the documents, were administrative actions or orders, so they were not required to be communicated. We are unable to accept such a contention of Mr. Roy. The order under section 14(1) of the said Act or the subsequent sanction to exten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, the revenue would produce their records showing the sanction as recorded, but nothing was done. In that view of the matter, we uphold the determination of the learned Judge in the trial court that the documents and records having been retained beyond the period as specified, was illegal, unauthorised and without jurisdiction and, as such, this appeal should fail. As stated hereinbefore, we further hold that the provisions of section 14(3A) of the said Act are mandatory and noncompliance with them or the provisions thereunder would be fatal and, in fact, such inaction on the part of the revenue has made the proceedings in the instant case unauthorised, void, illegal and irregular. Mr. Roy thereafter submitted that the said Act being a complete code itself as the same affords complete and adequate relief by way of appeal, revision and review in section 20, no interference in the writ jurisdiction by this court should have been made. Mr. Roy also submitted that the said firm was not at all diligent and the writ application should not have been entertained because of the delay, wilful laches and negligent conduct of the same. Mr. Dutta, appearing for the said firm, submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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