Decided on August 03,1973



R.N.MISRA, J. - (1.) THE petitioner is a firm registered under the Indian Partnership Act and is a dealer in petrol, high speed diesel and light diesel products and kerosene oil. It receives supplies from the Indian Oil Corporation and has been registered as a wholesale distributor under the Orissa Motor Spirit (Taxation on Sales) Act, 1946 (hereinafter referred to as the Act ). A certificate of registration under section 7 of the Act had been granted to it. On 16th June, 1970, an Assistant Commercial Tax Officer attached to the Intelligence Wing at Berhampur (opposite party No. 4) visited the petrol station. It is alleged on behalf of the petitioner that both the partners were absent at the relevant time and a watchman was in actual charge at the spot. A younger brother of the partners was in the office close-by. It is alleged that opposite party No. 4 was allowed to enter into the premises and inspect the books of accounts in the manner he liked; yet a report was made by opposite party No. 4 both to the local police as also to the Commercial Tax Officer that while opposite party No. 4 tried to seize some of the accounts of the petitioner-firm he was resisted. A proceeding was initiated against the petitioner for cancellation of the registration on the allegation that the provisions of section 8 (2) of the Act and rule 17 (f) made thereunder had been violated. Reliance was placed in support of the allegation of opposite party No. 4 on a statement of one Choudhury Babu Patra who is said to have come to the place and witnessed the resistance offered to seizure. Before the Commercial Tax Officer in the proceeding on behalf of the petitioner all the allegations contained in the report of opposite party No. 4 had been denied. A prayer was made to produce the witness who supported the report for cross-examination. Ultimately, the Commercial Tax Officer (opposite party No. 3) directed the cancellation of the registration. An appeal was carried to the Assistant Commissioner (opposite party No. 1), who sustained the order of cancellation. He was of the view that it was not necessary to produce the witness for cross-examination. He was also of the view that opposite party No. 4 had jurisdiction to inspect and seize the accounts. It is against this appellate order that the present writ application has been filed.
(2.) MR . Mohanty raised initially three contentions : (1) That opposite party No. 4 had no power of seizure as there was no provision to seize under the Act; (2) That in the absence of special authorisation, opposite party No. 4 was not competent to act as a Commercial Tax Officer under the statute; and (3) That there was violation of principles of natural justice inasmuch as the evidence of the witness was utilised though in spite of the prayer of the petitioner he was not offered for cross-examination so that the evidence could be tested. Mr. Mohanty, subsequently, did not press his contention regarding special authorisation in view of the definition of "commercial Tax Officer" in section 2 (a-2) of the Act. Indisputably, opposite party No. 4 had been appointed to discharge the functions of a Commercial Tax Officer under the provisions of the Orissa Sales tax Act and, therefore, automatically became a Commercial Tax Officer for the purposes of the 1946 Act. The learned standing counsel does not dispute the fact that under the Act there is no power of seizure of documents. He, however, contended that though the action of opposite party No. 4 has been described even by himself and others as seizure, all that was really intended was inspection.
(3.) TWO questions, therefore, really arise for consideration, namely, as to whether what was attempted by opposite party No. 4 that afternoon was inspection or seizure of the documents and as to whether there has been failure to comply with the rules of natural justice because the witness had not been produced for confrontation.;

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