S.N.DWIVEDI, J. - (1.) THESE two petitions proceed on similar facts and raise common questions of law. So we are deciding them by a common judgment.
(2.) THE petitioners are dealers under the Sales Tax Act (hereinafter called the "Act"). Their business premises were searched, and the searching party seized certain documents. The search and seizure of documents was made in the purported exercise of power under section 13(3) of the Act. The petitioners challenge the legality of the search and seizure of documents. Sri Raja Ram Agarwal, counsel for the petitioners, has raised these points : (i) the search and seizure of documents, having been made by an Assistant Sales Tax Officer, is illegal; (ii) the administrative instructions issued by the Commissioner of Sales Tax on 1st April, 1967, are illegal; and (iii) the information elicited from the seized documents cannot be used as evidence in the assessment proceedings against them. We shall examine these arguments serially. As regards the first point, it is not disputed that the search and seizure of documents was made by an Assistant Sales Tax Officer. In Agrawal Engineering Stores v. State of Uttar Pradesh ([1971] 28 S.T.C. 507; 1971 A.L.J. 447), it was held by Full Bench of this court that an Assistant Sales Tax Officer is not authorised to make a search under section 13(3) of the Act. Accordingly, the search and seizure of documents in these two cases is illegal. Coming to the second point, the administrative instructions issued by the Commissioner of Sales Tax on 1st April, 1967, are to this effect : "The assessing authority should give due weight to the estimate given by the Sales Tax Officer (Special Investigation Branch). In case the assessing authority differs substantially with the estimate of the Sales Tax Officer (S.I.B.), it should seek clarification from the Sales Tax Officer (S.I.B.) and then record reasons for differing with his estimates."
(3.) THE instructions go on to say : "The assessing authority often makes adverse comments on the reports of the Sales Tax Officer (S.I.B.) in the assessment order itself. It is said that it is highly undesirable. The assessing authority is asked to refrain from making such comments. In the event of his disagreeing with the report of the Sales Tax Officer (S.I.B.) he may make a separate reference either to the Assistant Commissioner (Executive) or the Assistant Commissioner (S.I.B.), Headquarters, seeking guidance." ;