9911796707
TMI Blog1988 (4) TMI 401X X X X Extracts X X X X X X X X Extracts X X X X ..... ccount for 50 per cent of the entire transaction, at the most, and hence the gross turnover for the years 1976-77, 1977-78 and 1978-79 was proposed to be determined as below: 1976-77 Rs. 6,40,000.00 1977-78 Rs. 7,00,000.00 1978-79 Rs. 5,50,000.00 The petitioner was required to appear for final hearing of the case before respondent No. 4 on 24th May, 1979. The petitioner submitted his replies annexure P/4 and annexure P/5 dated 25th May, 1979 and 29th May, 1979. In the former he explained that since the seized books had not been returned to him he could not understand on what basis the calculation of gross turnover had been made stating further that most of the allegations made in the notice annexure P/3 were fake. In the latter reply he made a specific request once again for return of the exercise books seized on 20th December, 1978. Respondent No. 4 passed a best judgment assessment order annexure P/6 on 15th June, 1979. It is stated therein that the petitioner had raised objections regarding delay in return of the seized exercise books to him. Non-return of the exercise books was justified on the ground that the assessee was required to attest the entries and to make a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly after expiry of 30 days from the date so fixed that the sales effected by him would have become liable to payment of sales tax. This essential legal requirement has not been complied with in the impugned order, annexure P/6. This law point was specifically raised before respondent No. 2 in the appeal before it but the same was outrightly rejected vide order annexure P/9 on a wholly misconceived basis that the petitioner had not raised this law point before respondents Nos. 3 and 4. Through the present writ petition, therefore, the petitioner has made a prayer for quashing of the impugned orders annexures P/6, P/7 and P/9. A written statement has been filed by respondent No. 4 on behalf of the respondents. The seizure of the exercise books on 20th December, 1978 is admitted. It is, however, stated that approval of the Commissioner for retention of these exercise books was applied for on 27th March, 1979 in accordance with the provisions of section 36 of the Act and the same was granted on 27th June, 1979 for retention of the books up to 31st July, 1979. It is, therefore, contended that retention of the seized exercise books by respondent No. 4 was quite lawful. It is also state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay be retained for a longer period if so required: Provided further that if the seized book, account, register or document is retained by any authority other than the Commissioner for more than the aforesaid period, the reasons for doing so shall be recorded in writing and the approval of the Commissioner obtained by the authority so retaining them." A plain reading of the above provision makes it clear that respondent No. 4 had no authority to retain the seized exercise books with it beyond the period of 60 days without the approval of the Commissioner. Instead of returning the seized books to the petitioner, respondent No. 4 illegally rushed through the matter and passed the best judgment assessment order annexure P/6 on 15th June, 1979. The approval of the Commissioner to retain these books as admitted by the respondents was granted only on 27th June, 1979 more than 10 days after the impugned order annexure P/6 was passed. Thus the clamour of the petitioner for return of the seized books was justified. On the other hand, the refusal of respondent No. 4 to return the same and instead his insistence that the petitioner should attest the entries therein and also make a statem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llate authority to challenge the determination of the said portion of its turnover. It was held that the petitioner never felt aggrieved from the determination of the said portion of the turnover and it did not appeal against the same. Therefore, it could not raise a contention questioning the accepted portion of the turnover for the first time before the Tribunal. Almost similar were the facts in Spencer and Company Ltd. [1974] 34 STC 249 (Mad.). I am of the considered view that the Tribunal, respondent No. 2, ought to have entertained the law point so raised by the petitioner. The jurisdiction vested in respondent No. 2 in respect of adjudication of the appeal before is adumbrated in sub-section (6) of section 39 which lays down that subject to regulations made by the Tribunal under subsection (10) of section 4 and subject to such rules of procedure as may be prescribed in relation to an appellate authority other than the Tribunal, an appellate authority may pass such order on appeal as it deems to be just and proper, including an order enhancing the amount of tax or penalty or interest or all or an order staying the recovery of the tax assessed or penalty imposed or interest c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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