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TMI Blog2022 (5) TMI 559X X X X Extracts X X X X X X X X Extracts X X X X ..... d to as "Act of 1993") and it also possesses a certificate of registration issued by the jurisdictional officer under the Act of 1993, read with Assam General Sales Tax Rules, 1993 (hereinafter referred to as "Rules of 1993"). The petitioners have been regularly submitting statements/monthly tax returns in respect of the goods transported into as well as transported out of Assam. The head office of the petitioner firm is located in Kolkata in the State of West Bengal and it has its branch offices in Guwahati and in other districts of Assam. 3. On 28.01.2004, the respondent no. 5 visited the branch office of the petitioner firm in Guwahati, at Dispur, and identified himself as the Superintendent of Taxes, Vigilance Group, and served notice upon the petitioner firm under section 46(2)(a) of the Act of 1993 directing the petitioners to produce all the records and documents relating to transport and delivery of various consignments of goods made during the period from October, 2003 up to date. Thereafter, a search was conducted at the branch office of the petitioners and the respondent no. 5, in exercise of power under section 44(3) of the Act of 1993, seized some records/documents in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the petitioner under section 61 of the Act of 1993. The petitioner no. 2, i.e., Manager of the Guwahati branch office of the petitioner No. 1 suffered from some illness and was out of station, which fact was duly intimated to the respondent no. 5 requesting him to keep the matter pending till the respondent no. 2 returns and resumes his duty. Thereafter, upon the petitioner no. 2 resuming his duty, the entire papers and documents regarding the issue were sent to the Administrative Head Office of the petitioner company seeking advice on the further course of action. 6. Being situated thus, the petitioner was served with another notice dated 25.10.2004, issued by the respondent No. 6, i.e. Certificate Officer, Kamrup, Guwahati, under section 7 of the Bengal Public Demand Recovery Act, 1913, whereby the petitioner No. 1 was directed to pay Rs. 20,00,768/- (Rupees twenty lakh seven hundred and sixty-eight) with regard to Case No. 249/2004-05/AGST. Vide the aforesaid notice, it was also intimated that the petitioner was permitted to file objections, if any, within a period of one month from the date of receipt of the said notice. The petitioner submitted a petition dated 07.12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n), Kamrup, Guwahati, and the Notification dated 14.03.2005 (Annexure-S) issued by the Commissioner of Taxes, Assam. It was further prayed that the Case No. 249/2004-05/AGST and also the Notification No. CTS.45/95/PT/ 2004/2 be also set aside and quashed. 8. The respondents duly contested the matter by filing their affidavit through the Joint Commissioner of Taxes. The respondent department contended that the petitioner No. 1 had failed in filing regular monthly returns/statements as required to be filed in respect of the consignment of taxable goods transported by it. The department had detected that the petitioner No. 1 had actively abetted evasion of tax by the concerned consignee/dealers of taxable goods. The respondent department defended the assessment of tax, issuance of the notices and imposition of tax and penalty and contended that the petitioner appeared before the concerned authority but it could not substantiate its claim of proper accounting with regard to the consignments of taxable goods transported by it. The respondent further contended that Central Vigilance Group was constituted by the Commissioner of Tax vide order dated CTMS-2/200/Pt/40 dated 21.01.2002. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the State Government informing constitution of any vigilance wing and, therefore, the search conducted by the respondent no. 5 by projecting himself to be a member of the vigilance wing is nothing but misrepresentation by an officer of the State and, therefore, without any jurisdiction. The search conducted, therefore, is bad in law and the consequential assessments being made are also contrary to law and the same are also liable to be interfered with, set aside and quashed. 12. The respondents, on the other hand, dispute the contention of the petitioners and rely on the affidavit filed by them to contend that the "Central Vigilance Group" was constituted by the Commissioner of Taxes vide his order No. CTMS-2/200/Pt/40 dated 21.02.2002. This group, however, underwent slight reconstitution vide another order dated 04.07.2003. It is contended that the assessing authority had proceeded against the petitioner-transporter only on 28.01.2004 when the documents were seized and Show Cause notices were issued accordingly. The respondents also contend that on the date when the seizure was made and also in the subsequent proceedings, the question of jurisdiction was never raised by the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sters etc. are to be retained by the authority other than the Commissioner for more than 120 days, then the reasons for doing so shall be recorded in writing and the approval of the Commissioner shall be obtained by the authority for retaining such documents, books of accounts, registers, etc. Section 46A, which was inserted w.e.f. 10.05.2002, prescribes for obtaining certificate of registration in respect of every transporter, carrier or transporting agents who are carrying on their business relating to transportation of taxable goods in Assam. Relevant portion of sections 2(10), 2(33), 3(1), 44(3), 46A, are extracted below: "2. (10) 'Dealer' means any person who carries on the business of selling or purchasing goods in the State and includes - (i) Government and local authority; (ii) a cooperative society or a club or any association which supplies goods to its members or which sells goods supplied to it by its members; (iii) a factor, a broker, a commission agent, a del credere agent, and auctioneer or any other mercantile agent, by whatever name called, and whether of the same description as herein before mentioned or not, who carries on the business of purchasing or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay be necessary and shall grant a receipt for the same, such seized accounts, registers or documents shall be retained for so long as may be reasonably necessary for examination thereof or for a prosecution under section 57 and shall thereafter be returned to the person concerned in the prescribed manner; Provided that if the seized accounts, registers or documents are retained by any authority other than the Commissioner for more than one hundred and twenty days, the reasons for so doing shall be recorded in writing and the approval of the Commissioner shall be obtained by the authority so retaining them. 46A. (1) For carrying out the purposes of section 46 every transporter, carrier or transporting agent, operating its transport business relating to taxable goods in Assam, shall be required to obtain a Certificate of Registration in the prescribed manner from the Commissioner or any officer appointed under section 3 to assist him, on payment of such fees as may be prescribed. (2) Every transporter, carrier or transporting agent shall transport and deliver the goods as per provisions of the Act and the rules framed thereunder and shall furnish to the Assessing Officer such pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isters maintained by the petitioner No. 1, who is a transporter. This search was admittedly made in the place of business of the petitioners. Pursuant to the seizure of books of accounts and registers, notices were issued to the petitioner No. 1 to appear before the Assessing Officer and to explain the books of accounts and/or the registers seized. Subsequently, on the basis of the materials available before the assessing authority, an assessment of tax was made and penalty was imposed on the petitioner, a portion of which the petitioner claims to have already paid. In order to recover the outstanding taxes and penalty due from the petitioner, recovery proceeding had been initiated which, however, was stayed by orders of this court passed in the present proceedings. 16. The petitioners have not challenged the vires of any of the provisions of the Act. That apart, there are statutory provisions for appeal which are not being availed of by the petitioners to ventilate their grievances against the proceedings initiated by the respondent authority. On the contrary, the petitioners have questioned the very jurisdiction of the officers of the department conducting the search. Section 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is averment in the affidavit, no notification to that effect is enclosed to the counter affidavit filed, or is available in the case records. 17. Be that as it may, in view of the mandate of section 3 of the Act of 1993, even if the petitioners' contentions are to be accepted that the impugned search was conducted by the respondent no. 5 without actually being a member of the vigilance group or wing on the date when the search was conducted, the respondent no. 5 is admittedly a Superintendent of Taxes and, therefore, an officer authorized to assist the Commissioner of Taxes for carrying out the provisions of the Act as prescribed under section 3 of the Act of 1993. Section 44 of the Act permits search at business premises and seizure of books of accounts, documents, registers etc. The power of conducting such search and seizure are made available to any authority appointed under sub-section (1) of section 3. The provision under section 44(3) specifically relates to seizure of documents, books of accounts, registers etc. and such power to conduct seizure, for reasons to be recorded, is also vested on any authority appointed under section 3(1) of the Act of 1993. Under the circumsta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the basis of which assessments have been made and recovery proceedings have been initiated, inadmissible, or the assessments made and/or the recovery proceedings illegal or arbitrary or contrary to the provisions of law. It is well settled that the materials which are recovered pursuant to a search, can be safely relied upon by the authorities to render its findings for imposition of tax etc., if otherwise permitted as per the provisions of law. In Pooran Mal etc. vs Director of Inspection (Investigation) of Income-Tax Mayur, reported in (1974) 1 SCC 345, the Apex Court held that even if some relevant material or evidence is seized or is available to the department pursuant to the search which was supposedly conducted illegally or in contravention of the provisions of the Act, then such relevant material was liable to be used and cannot be directed to be excluded from the evidence collected for the purposes of proceeding under the relevant Act. 20. Therefore, in the present case, even if this court comes to a finding that the search and/or seizure made against the petitioners is not as per the provisions of law, then the evidence collected and the materials recovered against the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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