9911796707
TMI Blog1977 (8) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... cuments and records stated to have been seized on search of the assessee's premises were relied on ; and, in the light of these records, the taxable turnovers reported by the assessee for the years in question were enhanced and revised as follows : --------------------------------------------------------------------------------------------------------------------------------------------------- Assessment year Reported taxable Enhanced or revised turnover turnover --------------------------------------------------------------------------------------------------------------------------------------------------- 1 2 3 -------------------------------------------------------------------------------------------------------------------- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition for adjournment. A final opportunity to appear and produce the accounts was given by adjourning the proceedings to 10 a.m. on 24th September, 1968. The assessee replied on 20th September, 1968, stating that the accounts had been produced on 10th September, 1968. The Intelligence Officer replied by 4th October, 1968, by which the assessee was informed that on 27th August, 1968, he had inspected the assessee's premises along with the squad of officers and seized certain secret account books which were not shown to the department. The assessee's statement that its partner, Sri A. Narayanan Nambiar had appeared on 10th September, 1968, with its accounts was denied as also the alleged production of accounts. A further opportunity to produc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed scope of section 41 of the General Sales Tax Act under which only an erroneous decision on a question of law or a failure to decide such question can be canvassed. Counsel for the petitioner stressed particularly that the search and seizure which are supposed to have taken place on 27th August, 1968, were, for the first time, disclosed only by the officer's letter dated 4th October, 1968, and was not referred to at all in the earliest letter after search dated 5th September, 1968. This, undoubtedly, is so. But, on that date, at least the search and seizure were disclosed. And the Government Pleader submitted that the notice dated 5th September, 1968, was in the printed form enjoined by the Act and the Rules, in which there was no scope t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt should not be allowed to be urged in revisional proceedings. The orders of the authorities concerned do not disclose the point as to the legality of the search and seizure having been urged in any specific or pointed form. But, at the same time, the counsel for the petitioner drew our attention to ground No. 10 of the grounds of appeal to the Appellate Assistant Commissioner and to the Tribunal where the legality of the search was specifically put in issue. It might not be altogether fair to preclude the petitioner from urging this point. It seems really to be immaterial and irrelevant also. As the learned Government Pleader rightly pointed out, it has been ruled by a Division Bench of this court in Varghese Varghese v. Commissioner of A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 100(4) of the Criminal Procedure Code will be applicable. But section 165 of the Code, requiring magisterial intervention, is somewhat difficult of application to a search envisaged by section 28(4). But the learned Government Pleader rightly stressed that the provisions are made applicable by sub-section (4) only " so far as may be " and that this would be sufficient to exclude the full rigour of section 165 of the Code of Criminal Procedure. Whatever that be, it was very fairly and properly accepted by the counsel for the revision-petitioner that the illegality or irregularity in the search would not by itself vitiate the search ; and that the acceptability of the evidence as to search is still a matter for judicial assessment and d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orporated. But counsel for the petitioner relied on an earlier ruling of the Supreme Court in State of Rajasthan v. Rehman AIR 1960 SC 210, rendered under the provisions of the Central Excises and Salt Act, where there are observations to show that section 165 of the Criminal Procedure Code is also attracted to the search and that the non-recording of reasons will vitiate the search. As we stated earlier, it is unnecessary to expatiate on this aspect, as there is enough authority in this court, at any rate, that even if the search and seizure be illegal, the materials searched and seized can still be looked into and relied upon for purpose of assessment. In the instant case, these were duly put to the assessee and no complaint was made on ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
