1. This is an application under Section 8 of the West Bengal Taxation Tribunal Act, 1987, in the nature of a writ petition. It is directed against sealing of godowns of the applicant at premises No. 89, Netaji Subhas Road, Calcutta-700 001 on February 12, 1993 by the respondent No. 1, Commercial Tax Officer, purportedly under Section 14(5) of the Bengal Finance (Sales Tax) Act, 1941. The question involved in this case is whether the sealing of the godowns was legal and valid.
2. In short, the case of the applicant is that he has been dealing in PVC tubes and fittings, hose pipes, G.I. wire, rope, etc., as a reseller under the name of India Files and Tools Agency at 89, Netaji Subhas Road, Calcutta-700 001. He has been a registered dealer under the Bengal Finance (Sales Tax) Act, 1941 and the Central Sales Tax Act, 1956. In October, 1992 the applicant shifted his accounts office to a new address at 11, Esplanade East, Calcutta-700 069 under intimation to the appropriate authorities. On February 11, 1993 allegedly at about 6.30 p.m. respondent No. 1 visited the accounts office of the applicant and inspected books of account, etc. He found that the cash book had not been written up-to-date for which the explanation was offered that the accountant of the applicant could not attend to his work for some time. It is alleged that thereafter respondent No, 1 had a heated argument with the applicant during which some threats were directed against him. On the next day he visited the place of business of the applicant at 89, Netaji Subhas Road, Calcutta-1 and inspected documents and papers. He wanted to visit the godowns at the same premises, for which opportunity was given but the officer sealed the godowns. Certain allegations have been made about getting certain blank and cyclostyled papers signed by employees of the applicant. Respondent No. 1 directed that the applicant or his representative should see him on February 15, 1993 for arranging unsealing of the godowns. Allegedly on February 15, 1993, the applicant's representative met the respondent No. 1 at his office but he advised him to come back on February 16, 1993 for the purpose. On February 16, 1993 the applicant's advocate together with the representative met the respondent No. 1, when respondent No. 1 wanted production of certain books of account for which an adjournment was taken till February 25, 1993. On February 16, 1993, respondent No.1 wanted that the goods stocked in the godowns should be tallied with the books of account and the cash amount of Rs. 60,000 found from the cash box during the visit on February 12, 1993 should be explained.
There was also some allegations about interpolation of orders written by the respondent No. 1 on February 12, 1993. The case of the applicant is that the sealing of the godowns was arbitrary and contrary to the provision of law. The condition precedent of sealing was nonexistent in this case. The prayers are for cancellation or withdrawal of the notice or order dated February 12, 1993 in respect of the sealing the godowns and for an order of prohibition restraining the respondents from taking any action against the applicant in terms of the notice or order.
3. The case of the respondents in their affidavit-in-opposition is that the sealing was necessitated on February 12, 1993 because there was no time on that day to make an inventory of the goods stored in the godowns and because the respondent No. 1 was of the opinion that there was a necessity of verification of the goods stored in the godowns as against the books of account, because on February 11, 1993 he had found that the cash book had not been written after December 31, 1992 and the average daily sale varied between Rs. 5,000 and Rs. 6,000 and also on February 12, 1993 upon a visit to the place of business it was found that the cash box contained an unexplained amount of cash of Rs. 60,000 and odd. Another ground taken in the affidavit-in-opposition was that the godowns at premises No. 89, Netaji Subhas Road were undeclared or undisclosed. The other allegations have been denied. The applicant filed an affidavit-in-reply naturally denying the allegations made in the opposition.
4. At the time of hearing learned advocates appearing for the applicant argued mainly three points. Firstly, it was contended that the Commercial Tax Officer, respondent NO. 1, had no authority or power to seal the godowns. Secondly, it was submitted that the state of mind which was necessary before sealing of the godowns was not present.
Reasons for sealing the godowns were not recorded. Thirdly, it was argued that there was no application of mind on the part of the officer in the matter of sealing the godowns, for which it becomes an arbitrary action.
5. Mr. T.N. De, learned State Representative, submitted that the Commercial Tax Officer had the jurisdiction and the authority to make the sealing under Section 14(5) of the 1941 Act, that reasons for the sealing have been narrated in the affidavit-in-opposition and that an opportunity may be given to the respondent No. 1 to make a list of the goods stored in the godowns at the time of directing unsealing of the same.
6. A perusal of the impugned order or notice dated February 12, 1993, annexed as exhibit "D" at page 37 of the main application shows that the cyclostyled sheet was filled by the respondent No. 1 only at the spaces left blank by putting the premises, names and dates at the appropriate places. The paper reads thus : "Whereas I am unable to enter or search godown...........at 89, Netaji Subhas Road, Calcutta-1 or whereas I have reason to believe that or is for the time being keeping stock of goods for sale, because the person in occupation or possession or charge fails to open it, I, in exercise of power conferred upon me under Section 14(5) of the Bengal Finance (Sales Tax) Act, 1941 do hereby seal the said godown in presence of.........." 7. We are not dealing with the question as to whether the respondent No. 1 was duly empowered to make the sealing under Section 14(5) of the 1941 Act, because that will not be necessary for disposal of this application. It was argued by Mr. Bhaskar Sen, learned advocate for the applicant, that Section 14(5) of the 1941 Act should be read with or in the context of the entire provisions of Section 14 and when construed in that manner, Section 14(5) will lead to the conclusion that an appropriate officer can seal a godown when he has reasons to believe or suspect that there is an attempt to evade tax under the 1941 Act. He contended that if this interpretation is not given, the result will be that a Commercial Tax Officer will be free to seal any dealer's godown without any condition precedent and he can thus intrude upon the liberty of the dealer without any valid reason. Mr. T.N. De, learned State Representative, submitted that Section 14(5) should be read independently, without the aid of the rest of Section 14. We, however, agree with the contention of the learned advocate for the applicant that Section 14(5) cannot be read except in the context of the whole of Section 14. Section 14(5) gives a special power to the appropriate officer certainly with a particular object in view. Otherwise, as argued by Mr. Sen, any godown of a dealer can be sealed by an officer having jurisdiction without giving any reasons for doing so. We are unable to hold that the Legislature while enacting Section 14(5) thought that the power given in Section 14(5) would be used in such unbridled or uncontrolled manner. The purpose of Section 14(5), in our opinion, is to seal a place of business or godown under certain conditions, only if there is a necessity for making search or some investigation obviously in the context of any attempt for evasion of tax on the basis of some opinion formed by or some materials in possession of the officer concerned. It is not possible to hold that the Commercial Tax Officer having jurisdiction will be at liberty to seal any godown of any dealer without fulfilment of any condition precedent.
8. Having read the impugned order or notice dated February 12, 1993 we do not come across any recording of reasons which can be said to have produced an impression in the mind of the respondent No. 1 that it was necessary to make a search or to investigate something related to sales tax, for which it was necessary to seal the godowns. As the order reads, the officer was unable to enter or search or he had reason to believe that stock of goods for sale was being kept in the godowns and the sealing was, as it were, necessary because the person in-charge did not open the godowns. It has been pointed out from paragraph 12 of the affidavit-in-opposition that clearly respondent No. 1 had gone into the godowns and seen that stocks of goods were lying there. Because the time was 5.15 p.m., late in the day, it was not possible for the respondent No. 1 to make a list of the goods stored in the godowns.
Therefore, the order mentions a fact which is clearly untrue. On the other hand, the impugned order or notice dated February 12, 1993 does not disclose any recording of reasons for which respondent No. 1 thought that a search or an entry into the godown was necessary. The mere fact, that certain goods were kept in godown cannot be the sole reason for sealing a godown. The mental condition of respondent No. 1 which drove him to seal the godown is not reflected in the impugned order or notice. An attempt has been made by the respondent No. 1 to explain the background in the affidavit-in-opposition to bolster the impugned order dated February 12, 1993. He has tried to state that his findings on February 11, 1993 and his finding of cash in the cash box on February 12, 1993 at the place of business of the applicant, which was allegedly inconsistent with the sales account of that day, were the reasons which led him to seal the godowns. Those reasons have not been recorded in the impugned order or notice. We cannot allow the respondents to improve upon the impugned order or notice by mentioning certain things in the affidavit-in-opposition.
9. Accordingly, we hold that the sealing cannot be justified and the order or notice of sealing dated February 12, 1993 was invalid and illegal. It was an arbitrary action not supported by the minimum requirement which was condition precedent to the action taken under Section 14(5) of the Bengal Finance (Sales Tax) Act, 1941.
10. That being the position, the impugned order dated February 12, 1993 must be quashed. Since the sealing and the order dated February 12, 1993 were invalid, it is not possible to allow the prayer of the learned State Representative that the respondents should be allowed, to make a list of the goods stored in the sealed godowns of the applicant.
Since the main application is capable of being disposed of on the above finding, we are not entering into the other points argued by the parties and the other allegations made in the pleadings.
11. Accordingly, the application is allowed. The impugned order or notice dated February 12, 1993 marked exhibit "D" at page 37 of the main application regarding sealing of the godowns of the applicant at 89, Netaji Subhas Road, Calcutta-1, is quashed. Respondent No. 1, Commercial Tax Officer, Strand Road Charge, is directed to unseal the godowns of the applicant at the said premises within forty-eight hours from now. The applicant or his representative will appear before respondent No. 1 at 12.00 noon on Friday, the March 26, 1993 at his office and then respondent No. 1 will unseal the godowns on that day and make over the godowns to the applicant or his representative as the case may be. If however communication of our order is not possible on Friday, the unsealing must be made on Monday, the March 29, 1993 without any fail.