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TMI Blog2006 (3) TMI 700X X X X Extracts X X X X X X X X Extracts X X X X ..... ng that he received the copy. In the "SIR", it is recorded thus : "Separate receipt issued for records received". However, the appellant refused to sign the receipt for having seized the records. It is stated that ten records were recovered from the business place of the appellant. On verification, it was suspected that there was attempt of evasion of sales tax. The accounts of the dealer were verified by the Central Intelligence Officer, Ernakulam with reference to "SIR" and the seized records. After hearing the appellant, the Intelligence Officer imposed a penalty under section 45A of the Kerala General Sales Tax Act, 1963 (hereinafter referred to as "the KGST Act"). The penalty proceedings were challenged by the appellant before the Deputy Commissioner, Kottayam, who as per his order dated June 30, 1988 modified the penalty. The order of the Deputy Commissioner, Kottayam, was challenged before the Board of Revenue in revision and the order impugned was set aside and the matter was remitted back to the Deputy Commissioner for fresh disposal. The appellant challenged the order of the Board of Revenue in O.P. Nos. 1555, 1556 and 1557 of 1991 before this Court. This Court set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to him. That the appellant did not receive the receipt was raised for the first time when notice proposing penalty was issued to him after verification of the books produced and records seized. Learned single Judge noticed in the judgment that the petitioner stated in the letter dated January 19, 1987 issued by him as follows: "When I appeared before you on December 20, 1986 you had shown that 10 items of books and records referred to in the notice under reference and you permitted me to pursue those records also. On perusal it was found that those books and records are not belonging to me or relating to my business. In any of the books or records referred to in the notice neither my name nor the name of my business are mentioned." The denial of seizure of records is clearly an after-thought on the part of the appellant. The Deputy Commissioner verified the records recovered and the stock registers and found that "certain stock position of gold noted in the recovered records and that recorded in the stock register GS12 are almost similar". It is, therefore, clear that the records seized and relied on as having been recovered from the business place of the appellant do really ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1995, issued by the department wherein it is stated thus: "Mahazar shall be prepared invariably in all cases where search is conducted under section 28(3) of the Act and also in cases where the dealers do not co-operate with inspections." 9.. The word "mahazar" is not defined in the Code of Criminal Procedure. It is not even mentioned in any of the sections in Chapter VII of the Code of Criminal Procedure. The Law Lexicon, The Encyclopaedic Law Dictionary with Legal Maxims by P. Ramanatha Aiyar, reprint Edition 1992, defines "mahzar" as follows: " 'Mahzar'. A general application or representation, a statement laid before a Judge, a public attestation, or document attested by a number of persons professing to be cognizant of the circumstances of the case, and submitted with their signatures, to the court; also in the Northern Sirkars, a written agreement given by the ryots conjointly to the Government for the performance of any duty." The Intelligence Officer need not submit the mahazar before any court. On the other hand, the Intelligence Officer could rely on "SIR" and the records seized on the search, while imposing penalty under section 45A of the KGST Act. In the "SIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Mad.), New Street Oil Mills' case [1978] 41 STC 36 (Ker) and Pooran Mal's case [1974] 93 ITR 505 (SC) are to the effect that even if a search and seizure of documents or account books is illegal, the documents or materials obtained on search or seizure can be looked into and relied on for the purpose of making the assessment. They have got probative value. It is a public document prepared by a public officer in the performance of his official duties. Law presumes that the proceedings so recorded are accurate and were made as reflected in the documents. It is certainly open to a party, who is aggrieved by the said record, to assail the same in appropriate proceedings and lead evidence and demonstrate that the official record so prepared is unreliable or cannot be relied on. But the said official record can be discarded only for cogent, valid and proper reasons and not in a light-hearted manner." In P. Sivaramakrishnan v. State of Kerala [1995] 99 STC 473 (Ker); ILR 1995 (1) Ker 92, it was held thus: "I do not think it necessary to labour long on this submission for the reason that the challenge in the main is to the imposition of the penalty under section 45A. The question for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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