J.N. Sarma, J.
1. This application under Article 226 of the Constitution of India has been filed praying the following reliefs :
(i) To cancel/recall and forbear from giving effect to the order dated December 28, 1989, annexure VIII passed by the respondent No. 1, Deputy Commissioner of Taxes, Assam, Gauhati, dismissing the revision petition of the petitioner-firm.
(ii) To cancel, etc., the notice dated September 29, 1989 issued by the Superintendent of Taxes, annexure IX, to the writ application.
(iii) To cancel, etc., the direction directing the petitioner to appear for verification of books of account, and
(iv) To declare the order of seizure of the books of account dated September 19, 1990 illegal and void.
The brief facts are as follows :
On September 8, 1989 notice was issued under Section 33(1) of the Assam Finance (Sales Tax) Act, 1956, by the Superintendent of Taxes, Dibrugarh, directing the petitioner to produce the books of account and documents for the periods ending March 31, 1987 to September 30, 1988 on September 19, 1989 at 11 a.m. at his office in connection with the assessment, i.e., annexure I, to the writ application. On the same date a notice was issued by the Superintendent of Taxes directing the petitioner to submit a report of turnover under the aforesaid Act and the Central Sales Tax Act, 1956 for the period ending March 31, 1989 and to make payment of taxes on or before September 19, 1989, i.e., annexure III, to the writ application. On September 18, 1989, the petitioner submitted a petition requesting the Superintendent of Taxes to refix the hearing after Puja holiday as it was difficult for the petitioner-firm to produce the books of account on September 19, 1989 due to the reason stated therein. Time was granted by the Superintendent of Taxes. This is annexure II to the writ application. On the same date, a reply was submitted to the notice dated September 8, 1989 requesting for grant of 3 (three) weeks time for submission of the return. The prayer was granted by the Superintendent of Taxes, this is annexure IV to the writ application. On September 19, 1989, the Assistant Commissioner of Taxes accompanied by the Superintendent of Taxes and 3 (three) Inspectors of Taxes visited the premises of the petitioner-firm. Inspector of Taxes, Dibrugarh, respondent No. 4, instantly issued a notice to the petitioner-firm under Section 31(1) of the Assam Finance (Sales Tax) Act directing the petitioner to produce all the books of account relating to the business with effect from April 1, 1988 to September 19, 1989 for verification at the business premises itself at 12.15 p.m. on the same date. This is annexure V to the writ application. The petitioner produced the books of accounts and papers as directed. A search was conducted by the respondent No. 4 namely, Inspector of Taxes of the business premises without production of the search warrant by the Magistrate. Almirahs and cabinets were directed to be opened, books of account already produced were seized without there being any necessity for such seizure. This is annexure VI to the writ application. On September 29, 1989 notice was served by the Superintendent of Taxes directing the petitioner to produce the relevant registers and documents in connection with the verification of the seized books of account. This is annexure VI to the writ application.
A revision petition was filed before the Commissioner of Taxes under Section 20(2) of the Assam Finance (Sales Tax) Act challenging the notice under Section 31(1) of the Act and also seizure of the books of account. A written argument was submitted before the Commissioner of Taxes, i.e., annexure VIII(a) to the writ application. On December 28, 1989 the revision petition of the petitioner was dismissed by the Deputy Commissioner of Taxes, i.e., annexure VIII to the writ application. Hence, this writ application.
2. On March 28, 1990, this Court stayed the annexure VIII. On August 7, 1991, the photocopy of the books of account which were seized were asked to be given to the petitioner at his costs.
The following points have been urged on behalf of the petitioner by the learned Advocate for the petitioner, Mr, J.P. Bhattacharjee :
(i) That Section 31(1) of the Act does not give any power to the taxing authority to direct any dealer to produce the books of account at the business premises itself and also does not contemplate issuance of any notice of a general nature requiring a dealer to produce all books of account from any date, at any place, as the officer concerned desires and, as such, the impugned notice issued by the Inspector of Taxes is illegal and not tenable in law.
(ii) That the respondent in reality and in effect conducted a search in the business premises of the petitioner-firm without production of search warrant as required by Sub-section (1) of Section 31 of the Act and, as such, the impugned notice issued under Section 31(1) of the Act is in colourable exercise of powers and the same is not tenable in law.
(iii) That Section 31(3) of the Assam Finance (Sales Tax) Act confers uncontrolled, arbitrary and unreasonable powers on the taxing authority without any limitation in the matter of retention of the seized books of account, papers and documents and, as such, the same violates the right guaranteed under Article 19(1)(g) of the Constitution of India and the same is ultra vires, illegal and void.
(iv) That the assessment of the petitioner-firm up to the period ending September 30, 1986 having already been completed by the Superintendent of Taxes after due examination of the books of account and documents, the Inspector of Taxes was not justified in directing the petitioner to produce the books of account from April 1, 1985 to September 19, 1989, which results in the reopening of the assessment without fulfilment of the conditions prescribed under the Act and, as such, the impugned notice dated September 19, 1989, is illegal without jurisdiction and liable to be set aside and quashed.
(v) That the seizure of the books of account made without complying with the provision of the Act is a gross violation of the fundamental rights of the petitioner and, as such, the seizure is liable to be declared illegal and the books of account of the petitioner are liable to be released.
I have heard Sri J.P. Bhattacharjee, learned Senior Advocate for the petitioner and Shri D.P. Chaliha, learned Advocate, far the respondents.
Section 9(2) of the Assam Finance (Sales Tax) Act, 1956 (hereinafter called 'the Act'), provides as follows :
'If the Commissioner is not satisfied that a return furnished under Section 8 is correct and complete, he shall serve on the dealer a notice requiring him, on the date, and at the hour, and place specified therein, either to attend in person or to produce or cause to be produced any evidence on which he may rely in support of his return.'
Section 11(1) provides as follows :
'If upon information which has come into his possession, the Commissioner is satisfied that any dealer has been liable to pay tax under this Act in respect of any period and has nevertheless failed to apply for registration and to make the return required of him or that sales of taxable goods has escaped assessment in any period or has been under-assessed or assessed at a lower rate or any deduction has been wrongly made therefrom, the Commissioner may, at any time within eight years of the end of the aforesaid period, serve on the dealer a notice containing all or any of the requirements which may be included in a notice under Sub-section (2) of Section 8, and may proceed to assess the dealer in respect of such period and all subsequent periods, and the provisions of this Act, so far as may be, shall apply accordingly as if the notice were a notice issued under the aforesaid sub-section.'
Section 31 of the Act provides as follows :
'(1) Subject to such conditions and restrictions as may be prescribed, the Commissioner may, for the purpose of this Act, require any dealer to produce before him any accounts, registers, vouchers or other documents relating to the manufacture, making, processing; import, sale or purchase of taxable goods or matters Connected 'therewith.
(2) All accounts, registers and other documents as referred to in Sub-section (1) the taxable goods in the possession of a dealer and his offices, shops, godowns, buildings, vessels and vehicles shall, at all reasonable times, be open to inspection by the Commissioner.
(3) If the Commissioner has reason to suspect that any dealer is attempting to evade payment of any tax under this Act, he may, for reasons to be recorded in Writing, seize such accounts, registers or documents Of the dealer as may be necessary; and shall grant a receipt for the same and shall retain the same only for so long as may be necessary for the purposes of this Act.
(4) The Commissioner may, for the purposes of Sub-section (2) or Sub-section (3), enter and search any place where he has reason to believe that the dealer keeps or is for the time being keeping any accounts, registers, vouchers or other documents referred to in Sub-section (1), on the authority of a search warrant issued by a Magistrate.
(5) The provisions of Section 102 and Section 103 of the Code of Criminal Procedure, 1898 (Act V, 1898), shall so far as may be, apply to searches under Sub-section (4).'
Section 31(1) gives the power to the Commissioner to require any dealer to produce before him any accounts, registers, etc. Section 31(2) gives the power to the Commissioner to inspect all the books of account at the business premises of a dealer at all reasonable times. Section 31(3), (4) and (5) deal with the power to seize, search, and seizure.
The basic conditions for exercising power under Section 31(3) are as follows :
(i) The Commissioner must have reason to suspect that any dealer is attempting to evade the payment of tax under this Act.
(ii) Reasons must be recorded in writing and on such reasons being recorded he may seize such accounts, etc., for the period and retain them so long as may be necessary for the purpose of this Act.
(iii) For the purposes of Sub-sections (2) and (3), the Commissioner may enter and search the place, the books of the dealer on the authority of a search warrant issued by a Magistrate. Admittedly, in the instant case, no reasons have been recorded in writing by the Commissioner as required under Sub-section (3). There is no search warrant issued by the Magistrate.
3. Shri Chaliha, learned Advocate appearing for the respondents, submits that this is a case of not search and seizure but a case of inspection of the books of account. As it is an inspection of books of account and the books of account were not seized and taken away by the authority but they were produced by the dealer.
4. In order to appreciate the rival contentions of the parties, let us have a look at the materials in connection with this matter. Annexure I is stated to be a notice under Section 33(1) [wrongly it is stated to be under Section 33(1) but it should be 31(1) of the Act]. Annexure V is a notice to produce the books of account under Section 31(1), annexure VI is a seizure list and this power of seizure was exercised under Section 31(3) and the reasons for seizure is stated to be as follows :
'Purchase against 'C' form (as per 'C' form statement) it is found to be more than the purchase accounted for in the purchase ledger as a result purchase is found to be suppressed resulting in the suppression of sale. Hence here is a reason to believe that the dealer has tried to evade the taxes and there is the signature of the Inspector of Taxes and he has described himself as a seizing officer'.
5. Along with the annexure-VI, there is a long list, of the documents seized from the petitioner-company.
The power under Section 31(1) is not arbitrary and uncanalised. Before issuing a notice the officer must apply his mind to the facts of the case and must give due regards to the necessity of not disturbing the business of the dealer or work of his staff any more than is necessary for the purpose of ascertaining the required information. This section does not contemplate issuance of a notice of general nature requiring a dealer to produce the books of account from any date which the officer concerned desires. In the instant case, the assessment of the petitioner up to September 30, 1986, had already been completed and the Inspector cannot exercise the power under Section 31(1) as it would amount to reopening of the completed assessment which is not permissible without fulfilment of the requirements of Section 11 of the Act. Section 31(1) cannot override and cannot overstep the mandatory provision of Section 11 of the Act. Such omnibus notice is not contemplated under the law and it may amount to fishing and roving enquiries in the business affairs of the petitioner-company which is not permissible under the law.
The next question is whether it is search and seizure The petitioner has alleged that it is search and seizure.
6. No affidavit-in-opposition has been filed on behalf of the respondents. So, it must be held, that as this factual statement has not been controverted that must be deemed to be admitted but on the basis of the materials on record, Shri Chaliha submits that this is not search and seizure. It is alleged that the almirahs and cabinets, etc., of the petitioner-firm were opened and they were searched.
7. In this connection Shri Bhattacharjee, learned Advocate for the petitioner, places reliance on the following two decisions :
(i) [1978] 41 STC 298 (S.Y. Modagekar &.Sons v. Commercial Tax Officer) where the Karnataka High Court pointed out as follows :
'The powers given to the officers under Section 28 and other provisions of the Karnataka Sales Tax Act, 1957, to take action against registered dealers for violation of the law are intended for the proper enforcement of the sales tax law and designed in the public interest. At the same time, as the fundamental rights of individuals under Article 19 of the Constitution could only be subjected to reasonable restrictions in the public interest, the procedural safeguards meant to protect the individual's right without affecting the public interest are also of equal importance. Therefore, while the officers have a duty to exercise their powers conferred by law and safeguard the public interest, they must also respect the restrictions imposed by the very law which gives them the power.
The petitioner-firm filed a writ petition and challenged a search and seizure of certain account books made by the respondent, Commercial Tax Officer (Intelligence), before whom no assessment proceeding relating to it was pending. The petitioner alleged that the respondent, along with some other officers of the department, raided and ransacked the petitioner's business premises, in spite of objections, and seized some account books without any search warrant and without complying with the procedural safeguards, which were conditions precedent for the 'search' as provided in Section 28 of the Act, and prayed for return of the seized account books. The department, without controverting the allegations of the petitioner, contended, that what was done by the officers was only inspection for which the procedural safeguards prescribed in the proviso to Section 28(2) of the Act did not apply :
Held, that, assuming that the respondent was the competent officer to make the inspection including search and there was a distinction between inspection and search, as the allegations made by the petitioner remained uncontroverted by the respondent, the action of the respondent was a search and seizure and was therefore illegal.'
The Section 28(1) and (2) of the Karnataka Sales Tax Act is in pari materia with the Assam Act.
(ii) [1971] 27 STC 434 (Harikisandas Gulabdas & Sons v. State of Mysore) where the Mysore High Court pointed out as follows :
'The provisions contained in the Code of Criminal Procedure; 1898, relating to searches and seizures would be applicable mutatis mutandis to searches and seizures made under Section 28(2) of the Mysore Sales Tax Act, 1957.
It is highly unbecoming of the officers of the department to conduct illegal search, and seize documents or accounts and make it appear that they are voluntarily handed over to them. The parties against whom search is to be conducted are entitled to the protection given under the provisions contained in Chapter VII and in particular of those in Section 165 of the Code of Criminal Procedure, 1898. Any attempt to circumvent those provisions by the authorised Officers should not be permitted as it is a serious invasion upon the rights, privacy and freedom of the citizens of India. The power of search must be exercised strictly in accordance with law arid no deviation should be tolerated.
Where a search and seizure are found to be illegal, the dealer is entitled to the return of all the seized accounts arid documents along with the copies and notes made therefrom by any of the officials.'
8. This being the position in law I hold that in the present case also there was search and seizure in the premises of the petitioner-company and such search and seizure in the premises of the petitioner-company was not in accordance with law, so the same is liable to be quashed which I hereby do. Accordingly, the books of account, etc., which were seized from the premises of the petitioner be handed over to the petitioner within a period of 15 days from to-day.
There was a prayer in the writ application to declare Section 31(3) of the Act as ultra vires but no argument was advanced on this point. So, I do not discuss that aspect of the matter.
9. Accordingly, this writ application is allowed holding that the search and seizure in the premises of the petitioner on September 19, 1989 vide annexure VI is illegal and the same is quashed. The petitioner shall get back all the books of account illegally seized from him.
I leave the parties to bear their own costs.