Sankar Prasad Mitra, J. - (1.) 1. This writ petition has been filed by the petitioners challenging the judgment dated 24.12.2003 passed by the West Bengal Taxation Tribunal in Case No. R.N. 489 of 2001. By the said judgment, the Tribunal held that the seizure dated 17.1.2001 of the books of accounts and documents of respondent No. 1 by the Assistant Commissioner of Commercial Taxes, Bureau of Investigation was bad in law. However, the respondent authority, the petitioners herein, were given liberty to take steps under section 30(3) of the West Bengal Sales Tax Act, 1994 (hereinafter referred to as 'the Act 94') on the basis of the materials disclosed by the documents and records seized.
(2.) The petitioner's case is that the respondent No. 1 a dealer using the veil of a 'broker' being proprietor of M/s. Shri Ranisati & Company, 30, Maharshi Debendra Road, Kolkata - 700007 had delivered oil cake and de-oiled cake in all forms, an item taxable @ 4% as per serial No. 213 under Schedule IV of the Act, 1994. The respondent No. 1 in spite of his liability to pay tax and to obtain compulsory registration under the Act, 1994 did nothing in this regard and he intentionally avoided the payment of taxes. As such pursuant to section 66 of the Act a raid was conducted in the business premises of respondent No. 1 and in course of raid relevant documents, books of accounts were seized by the raiding party. Pursuant to raid conducted, a notice dated 19.11.2001 was issued to the respondent No. 1 by the Assistant Commissioner of Commercial Taxes, Bureau of Investigation calling upon him for hearing along with relevant books of accounts and records. The respondent No. 1 against this move filed an application under section 8 of Act, 1994 registered as Case No. 489 of 2001 challenging the validity of seizure as well as notice dated 19.11.2001.
(3.) After hearing both sides in connection with Case No. 489 of 2001, the learned Tribunal Judge allowed the application filed by the respondent No. 1 giving an option to the petitioners to take steps under section 30(3) of the Act, 1994. The learned Tribunal Judge while dealing with the said application found that the question of payment of tax arises only after assessment and prior to that there is no liability on the part of a dealer to pay anything because tax at that point of time cannot be termed as due. According to him tax becomes due when assessment is made and a notice is issued by the department demanding payment from the dealer. According to learned Judge before taking any steps under section 66 of the Act, the liability of the dealer should be assessed at first and demand for payment should be made and in that event the tax becomes due and non-payment thereof should be called evasion of tax by a dealer. According to him unless any amount is found due after assessment, it cannot be said that the dealer has evaded payment of tax justifying action to be taken under section 66 of the Act 1994. It has been observed by the learned Judge as no tax was due from respondent No. 1 the question of evasion did not arise and, therefore, seizure of books of accounts from the premises of respondent No. 1 by the petitioners and issuance of notice dated 19.11.2001 were not valid in the eye of law. As such, he was pleased to declare the seizure as bad in law giving opportunity to the taxing authority to take appropriate steps under section 30(3) of the Act.;