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TMI Blog1990 (11) TMI 369X X X X Extracts X X X X X X X X Extracts X X X X ..... matters and paid taxes up to the period ending December, 1989. He claims that he never contravened any of the provisions of the sales tax laws. On February 5, 1990, respondents 1 and 2 along with other persons belonging to the Commercial Tax Department visited the place of business at 18/1, Maharshi Debendra Road, Calcutta, and arbitrarily seized various books of account and documents without applying their mind and granted a seizure receipt under section 14(3A) of the 1941 Act. The reasons for seizure, as given in the seizure receipt, are disputed. On the same day, the factory at Dankuni having remained closed on account of observance of holiday, respondents 1 and 2 entered it after breaking open the gate and arbitrarily seized certain books of account there. The production register and stock book which were required to be maintained at the factory were not available for seizure, as those had been taken to the applicant's office in Calcutta on February 2, 1990, for the purpose of making entries in the cash book and other books. The production register and the stock book were, however, seized from the applicant's office. A seizure receipt was also granted for the books of account s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assistant Commissioner directed respondent No. 2 who is the Commercial Tax Officer, North Circle, to conduct an investigation and scrutinise the accounts and records of the applicant. Under such instructions he visited applicant's place of business on February 5, 1990, and upon examination of certain entries in applicant's books of account with reference to certain papers, found that applicant was allegedly evading tax and then the seizure was effected for finding out the extent of tax evasion. The respondents have denied the allegation that the factory gate was broken open for effecting seizure. According to them, at the time of visit to the factory on February 5, 1990, twelve workers were found working there and the inspection was carried out in the presence of Naresh Kumar Jain, the son of the applicant. Copy of seizure receipt was served on him, but no protest was raised. In spite of service of notice dated February 6, 1990, applicant did not produce the books of account and records on the fixed day, namely, February 26, 1990. While denying that the applicant was asked to make a deposit of Rs. 50,000 under threat, it is said that the deposit was made voluntarily by the applican ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct and the Bengal Sales Tax Rules, 1941, a Commercial Tax Officer is authorised to exercise jurisdiction and authority over a "charge" to which he is posted and similarly an Assistant Commissioner of Commercial Taxes does so over a "circle" to which he is posted, a "circle" consisting of a number of "charges". He also contended that a Commercial Tax Officer, when attached to a "circle", is not authorised to exercise jurisdiction under the 1941 Act and the Rules over any part of that circle, unless he is attached to the "Central Circle", where all Commercial Tax Officers are vested with jurisdiction and authority to exercise such powers over the whole of the State of West Bengal. Mr. Chakraborty pointed out that the two Commercial Tax Officers, who have signed the seizure receipt dated February 5, 1990, relating to the seizure at the place of business at 18/1, Maharshi Debendra Road, Calcutta, have described themselves as Commercial Tax Officers attached to the North Circle and similarly the Commercial Tax Officer who signed the seizure receipt of the same date with respect to seizure at the factory at village Kharial (Dankuni) described himself as Commercial Tax Officer attached ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure receipts available to us, but Mr. Majumdar, learned State Representative, supplied those names at the time of hearing. Thus we find that in the seizure receipt for seizure at the business place, two Commercial Tax Officers attached to North Circle together with one Inspector Jorasanko charge effected the seizure. We also find from the seizure receipt for seizure at the factory that one Commercial Tax Officer attached to the North Circle and one Inspector of Jorasanko charge effected the seizure. It is not disputed that these Commercial Tax Officers were authorised by the Commissioner to exercise the powers of a Commercial Tax Officer attached to the Central Circle. It is not also disputed that a Commercial Tax Officer attached to the Central Circle is vested with powers to exercise jurisdiction over the whole of the State of West Bengal. We are not entering into the question as to whether or not the Commissioner's authorisation or delegation of authority concerning the relevant officers, actually resulted in vesting of powers in them for exercising jurisdiction over the whole of West Bengal. Even assuming that it was so given, it cannot be said, in the facts and circumstances o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication that the public officer has done the act in some capacity which he has failed to declare. Thus, the failure on the part of the Commercial Tax Officers who effected these seizures to mention that they were exercising the powers of a Commercial Tax Officer of Central Circle, is a material defect which makes the seizures invalid. 7.. It is beyond controversy that the power of seizure was delegated up to the level of Inspectors. But the fact that one Inspector of the appropriate "charge" was a co-signatory of each seizure receipt does not cure the defect already noticed. This is for two reasons. The first reason is that in the affidavit-in-opposition it has nowhere been claimed that Inspectors were actually making the seizures. On the contrary, it has been stated that under the instruction of the Assistant Commissioner, respondent No. 2, being the Commercial Tax Officer, North Circle, effected the seizures. Therefore, it amounts to an admission on the part of the respondents that Commercial Tax Officers attached to the North Circle effected the seizures and not the Inspector attached to Jorasanko charge. Moreover, this statement in the affidavit-in-opposition does not menti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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