Decided on June 15,1995



P. A. MOHAMMED, J. - (1.)A registered dealer under the provisions of the Kerala General Sales Tax Act, 1963 (for short "the Act"), at Chalakudy is the writ petitioner. The documents evidenced by exhibit P1 were seized from his business premises on October 1, 1994. Proceedings were initiated by the first respondent under section 28 (5) of the Act. Exhibit P3 notice dated January 23, 1995, was issued under section 45a of the Act proposing to levy penalty under they aforesaid section, on the basis of the records seized from the possession of the petitioner on October 1, 1994 and stock verification revealed therefrom. The petitioner filed exhibit P4 reply on January 30, 1995. Ultimately the first respondent passed exhibit P5 order on February 23, 1995, rejecting the contentions of the assessee and levying a penalty of Rs. 17,97,418. The reason specifically mentioned in exhibit P5 is the alleged offence of non-maintenance of true and complete accounts for the year 1994-95. Exhibit P5 order of the first respondent is seriously challenged in this writ petition.
(2.)HEARD learned counsel for the petitioner and the Government Pleader for the respondents.
It is an admitted case that though the documents were seized on October 1, 1994, they were not returned to the petitioner till the passing of exhibit P5 order by the first respondent. That position is crystal clear from exhibit P7 notice issued by the first respondent on February 20, 1995, directing the petitioner to take back the records recovered from his possession on or before March 2, 1995, after obtaining necessary endorsement. Learned Government Pleader at the outset points out that exhibit P5 is an order against which an alternate remedy is provided and, therefore, he pleads that no interference by this Court shall be made. Ordinarily I would have accepted the said contention. But in the present case I can only reject the contention for the reason that this is a matter involing restrictions on the freedom of trade guaranteed to a citizen. I do not propose to elaborate this point because I had on an earlier occasion dealt with this aspect in Josh Antony v. Deputy Commission of Agricultural Income-tax and Sales Tax [1994] 95 STC 146; (1994) 2 KLT 452.

What the Supreme Court said in the decision in Sterling Computers Ltd. v. M&n Publications Ltd. (1993) 1 SCC 445 is that this Court, while examining the review of an order of an authority either administrative or quasijudicial shall be more concerned with the decision-making process. If the procedure for taking a final decision is fair and reasonable, this Court will not ordinarily interfere. But, in case the decision-making process is found to be unreasonable or unfair, this Court will not hesitate to set it down as unauthorised or illegal. In this case, I am primarily concerned with the way in which the first respondent has dealt with the entire decision-making process. I need not enter into or probe into the aspects prior to the notice proposing to levy penalty under section 45a of the Act, evidenced by exhibit P3. Of course the were anterior notices and and replies between the first respondent and the petitioner. After analysing the issue, the first respondent proposed to levy penalty under section 45a of the Act. Exhibit P3, as pointed out above, is the show cause notice proposing to levy penalty, Under the provisions of section 45a there is a mandatory duty on the part of the authority concerned to afford an opportunity of being heard to the party concerned. Of course that was granted by the first respondent as per exhibit P3 notice. Exhibit P4 is the reply field by the advocate of the petitioner before the first respondent. In the penultimate paragraph of the said reply, the petitioner specifically prayed that he may be granted further opportunity to file an effective reply after perusing the records, which were seized from his custody. I cannot reject the request of the petitioner as unreasonable because the documents were seized on October 1, 1994 and the same were not returned even at the time when the show cause notice proposing to levy penalty under section 45a was issued. This is really an unsatisfactory state of affair because as I have laid down in Joseph Antony's case [1994] 95 STC 146; (1994) 2 KLT 422, if the officer is not taking prosecution he must return the records on the expiry of thirty days from the date of seizure. That has not been done admittedly. No prosecution was proposed against the petitioner and therefore the petitioner was entitled to get back the records after the expiry of thirty days. It is the duty of the officer to return it and the assessee need not go and ask for the accounts from the officer. Admittedly no opportunity had been granted to the petitioner to file an effective reply after perusing the documents which were seized from his possession. Ultimately exhibit P5 order was passed by the first respondent levying penalty as proposed in the show cause notice.

(3.)LEARNED Government Pleader has pointed out that the petitioner had been given opportunity to peruse the documents and to take copies therefrom. That will not at rate disentitle the petitioner to ask for a further opportunity to file an effective reply after receipt of the documents that seized from his possession. Therefore, according to me, exhibit P5 order is vitiated for the sole reason that an effective opportunity had been denied to the petitioner and for that reason I can only declare that exhibit P5 is quite illegal. So exhibit P5 is quashed.
It is also apt to observer here that it is the duty of the court to lift the veil of the form and appearance in order to discover the true character and the nature of the order pursuant to which an action has been taken by the authority. After lifting the veil if this Court is satisfied that the action of the officer concerned is opposed to fairness and reasonableness, this Court can definitely set aside the order and that is what I have done in this case.


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