M.N.Roy, J. - (1.) In this application, the petitioner has impeached the search and seizure dated 3rd August, 1973, made under Section 14(3) of the Bengal Finance (Sales Tax) Act, 1941 (hereinafter referred to as the said Act).
(2.) The petitioner, Ogarhmull Choudhury and Company (hereinafter referred to as the said petitioner), is a firm duly registered under the Indian Partnership Act, 1932, with its partners, Ogarhmull Choudhury and Bimal Kumar Choudhury. The said petitioner at all material times carried and still carries on business as merchants and commission agents and deals in grains and pulses. It has been stated that such business is being carried on by the said petitioner from Deewali S. Y. 2026 corresponding to 10th November, 1969, and the accounting year ends on Kartik Badi 14 of each Sambat year. It has been stated that the said petitioner never carried nor carries on business of selling in goods which are liable to tax under the said Act and in fact the pulses, mustard seeds and mustard oil sold by it are not liable to tax under the provisions of the said Act and as such the petitioner has stated that it did not apply for and get itself registered as a dealer under the said Act. It has also been stated that the petitioner was and is not liable to pay any tax in respect of any sale of the said goods under the provisions of the said Act and as such it was and is not liable to be registered under the provisions of the said Act. This statement of the said petitioner has of course been denied by the answering respondents in their affidavit-in-opposition dated 25th July, 1975. It has been stated by the deponent to the said affidavit, that apart from selling non-taxable goods, the said petitioner also sold taxable goods, such as groundnuts, which has also having attracted the law to pay tax under the said Act, was required to apply for and get itself registered and to obtain a certificate of registration in conformity with the provisions of the said Act. The said deponent has stated that the said petitioner, having failed to do so, would not be entitled to the reliefs as claimed or to maintain this petition for the prayers as made.
(3.) Admittedly, there was ex parte assessment by the Commercial Tax Officer, Central Section, against the petitioner, for the periods for the 4 quarters ended Kartik Badi 14, Sambat years 2028 and 2029. Those assessments have been alleged by the said petitioner to be void ab initio, illegal and without jurisdiction apart from the fact that they were in violation of the principles of natural justice and were mala fide too. However, being dissatisfied with the said assessment orders, the said petitioner preferred necessary appeals to the Assistant Commissioner, Commercial Taxes, Central Section, and those appeals have been stated to be pending. The said petitioner has also stated that on or about 7th May, 1973, it made separate applications for stay of realisation of the amounts, which according to it, were wrongfully assessed by the Commercial Tax Officer concerned, until the final disposal of the connected appeals and by the letter of 14th May, 1973, it was informed that by 3 separate orders, all dated 12th May, 1973, the 3 stay petitions, as mentioned hereinbefore, have been rejected. Against such determinations, a rule being Civil Rule No. 1555 (W) of 1973 was obtained by the said petitioner. In the said rule an ad interim order was also obtained by the said petitioner and such fact, according to it, has been duly communicated to the respondents concerned, including the Commissioner of Commercial Taxes, West Bengal, who is respondent No. 3 in this proceeding. The said petitioner has further alleged that since the issue of the said rule and the ad interim order as aforesaid, the authorities concerned, who are respondents herein, are harassing it in many ways and are interfering with the conduct of its business.;