M.N.Roy, J. -
(1.)This appeal under Clause 15 of the Letters Patent is directed against the determination by Debiprosad Pal, J., made in Civil Rule No. 1519(W) of 1973 on 13th September, 1973. By the said determination, the rule in question was made absolute following the determination of the said learned Judge in the case of A.S. Narayana v. State of West Bengal 78 C.W.N. 295. The respondents in this appeal, M/s. Sarda & Sons, is a partnership firm (hereinafter referred to as the said firm) registered under the Indian Partnership Act, 1932 and at the material time it carried on business of dealing in iron and steel materials and was also the manufacturer of various iron goods. The said firm came into existence by virtue of a partnership deed dated 5th April, 1965 and previous to such incorporation, the business in question was a proprietary concern of one Ram Chandra Sarda having 10 annas share and Ghanashyam Sarda having a share of 6 annas. There is also no dispute that the said firm is a dealer within the meaning of Section 2(c) of the Bengal Finance (Sales Tax) Act, 1941 (hereinafter referred to as the said Act), having registration certificate No. JK/2658-A. Apart from the said registration the said firm is also registered under the Central Sales Tax Act, 1956, having registration certificate No. 233-A(JK)(C).
(2.)From a reference to the statements in the petition, it appears that the said firm was an assessee under the Acts as mentioned hereinbefore and was not a defaulter. It has been alleged that on or about 10th January, 1973, three persons introducing themselves as Inspectors of the Bureau of Investigation, respondents Nos. 1, 2 and 3 (hereinafter referred to as the said respondents), entered the premises of the said firm and wanted to search its office. It also appears that even in spite of the request made by the manager of the said firm, the search in question was conducted and in pursuance thereof the said respondents seized and took away various books of account, declaration forms, sale bills, challans, bank statements and other documents or papers. The said firm has alleged such search and seizure to be illegal, unauthorised, void apart from being baseless and mala fide.
(3.)Thereafter, on or about 5th April, 1973, a notice dated 4th April, 1973 (annexure D), issued under Section 14(1) of the said Act was received by the said firm asking it thereby to appear on 31st May, 1973, before the Commercial Tax Officer-cum-Investigating Officer, Bureau of Investigation, with all the books of account and connected documents relating to the concerned period and also to furnish necessary explanations of the said books, records and documents, if necessary, which were seized on 10th January, 1973. The seizure report and the list is at annexure C to the petition. It has been alleged by the said firm that in issuing the notice in question, respondent No. 4 did not apply his mind at all, inasmuch as no period was mentioned for the production of accounts and connected documents and, as such, the said notice was also termed to be illegal, void and without jurisdiction. It has also been alleged by the said firm that in the course of assessment or in connection with any assessment proceedings, there were no allegations at all to the effect that the said firm had attempted or is attempting to evade payment of any tax. In fact, it has been stated that no tax is due and payable by the said firm to the authorities concerned. The said firm has also contended that respondent No. 4 had no competence, authority or jurisdiction to issue the said notice under Section 14(1) of the said Act, as he was not the assessing Commercial Tax Officer for assessing it and, as such, the said respondent also acted illegally, arbitrarily and against all principles of natural justice, not only in issuing the said notice but also in not disclosing the reasons for issuing the same under Section 14(1). The said firm has contended that on receipt of the notice, they asked for time on the ground of the absence of their accountant, who, at the relevant time had left for his native place on account of a marriage in his family. But the said letter was not replied to by the respondents. It has also been stated by the said firm that there was or is absolutely no material before the said respondents, on the basis of which the alleged reasons to suspect in the case of the said firm could be formed and, more particularly, for the formation of the belief that the said firm was attempting to evade payment of any tax under the said Act. The said firm has further contended that the said respondents at all material times had no and still they have no power under the said Act to enter and search the business premises and to seize the records as mentioned hereinbefore and, in that view of the matter, the purported search and seizure made on 10th January, 1973 and all proceedings taken therein were and are illegal, invalid and without or in excess of jurisdiction. Relying on the provisions of Section 14 of the said Act and the sub-sections thereunder, it was also contended that the period for retention of the books of account and other documents so seized could not, in any event, be beyond 21 days, if the seizure was made by the Inspector or Commercial Tax Officer and, in fact, such period had expired on 1st February, 1973 and, furthermore, the seized books of account and other documents, etc., could not also be retained more than 42 days by the Inspecting Officer, as such period had already expired on 22nd February, 1973. Thus it was stated that on the expiry of the said periods, the respondents had no competence, authority or jurisdiction to retain the seized books of account and documents in contravention of Rule 70 of the Rules as framed under the said Act, for unlimited period. There is also no dispute that those records as seized are still lying with the said respondents. It has further been contended by the said firm that on the expiry of the said period of 21 days and/or 42 days, i.e., on and from 1st February, 1973, or on 22nd February, 1973, the said firm had acquired the right to have the said books of account, documents or papers, etc., returned to them under Rule 70 of the said Rules read with Section 14 of the said Act and the respondents had no lawful authority or jurisdiction to continue to retain or detain them. It has also been stated that it was incumbent upon the respondents to forthwith release and return those documents to the said firm but they have failed to do so and thus to perform their legal obligations. In view of the above, it was contended that the respondents at all material times were and still are in wrongful and unauthorised possession of the said books of account, documents and papers. The said firm has further contended that after the expiry of the period of 21 days or 42 days, as the case may be, the respondents were and are, as stated hereinbefore, in wrongful and unauthorised possession of the records seized on 10th January, 1973, from their business premises, inasmuch as no written sanction or reasons for retaining and/or detaining them have been recorded by the Assistant Commercial Tax Officer or the Commissioner of Commercial Taxes and, as such, the entire action was unauthorised, without jurisdiction and illegal. In any event, it was submitted that the detention of the documents in question, without giving the said firm any opportunity of being heard, was also improper, irregular and void.