Susanta Chatterjee, J. - (1.) The present writ petition has been filed seeking reliefs by issuance of a writ of mandamus commanding the respondents to issue declaration forms XXIVA and C and also special permits under 1954 Act as and when requires and to direct the respondents to cancel withdraw and/or rescind the Memo No. 2656/AD(N) dated 3rd March, 1986 issued by the Assistant Commissioner of Commercial Taxes, Calcutta (North Circle) and to issue necessary declaration forms by directing the Bureau of Investigation to release the books of accounts seized on 18th December, 1985. It is stated that the Assistant Commissioner of Commercial Taxes, Calcutta (North Circle), has initiated the proceedings for demand of security on the report from the Bureau of Investigation while the report is unwarranted and uncalled for. It is alleged that the conditions precedent being not in existence the respondent Nos. 1 and 2 assumed jurisdiction not vested to them in law and they acted without and/or in excess of jurisdiction by initiating a proceeding under Section 7(4a)(i) of the Bengal Finance (Sales Tax) Act of 1941. It is also alleged that the books of accounts seized by the Bureau of Investigation are not in conformity with the provisions of the Act and the Rules framed thereunder. The retention of the books of accounts for an indefinite period is causing loss and injury to the petitioner. Any attempt to impose and/or demand a security or even initiating a proceeding for demand of any security is arbitrary and thus being aggrieved by and dissatisfied with the alleged mala fide and unconstitutional actions of the respondents the petitioner has to move the writ jurisdiction of this Court on the ground that there being no provision in the extant Sales Tax Laws to send a report adverse or otherwise and a proposal by the respondent Nos. 2 and 3 to respondent No. 1 for demanding security and the issue of notice to show cause by the respondent No. 1 at the instance of the respondent Nos. 2 and 3 is in violation of Section 7(4a)(i) of the Act read with Rules 1971 of the said Rules.
(2.) The writ petition is contested by the respondent Nos. 1 to 6 by filing an affidavit-in-opposition. It is asserted that from the report of Bureau of Investigation it will appear that the petitioner maintains two sets of balance-sheets and the figures in one balance-sheet do not tally with the figures under the respective heads of another balance-sheet. Since the petitioner has failed to give any satisfactory explanation for the said discrepancy both before the Bureau of Investigation and also before the Commercial Tax Officer the steps asking for security have been taken. It is also alleged in the affidavit-in-opposition that the balance-sheet produced by the petitioner at the time of enquiry in connection with granting eligibility certificate does not tally with the balance-sheet and a comparative chart was made wherefrom it will be clear that there are serious discrepancies between the balance-sheet produced before the Bureau of Investigation and the balance-sheet produced before the Assistant Commissioner of Commercial Taxes. The respondent No. 1 considered the relevant facts and circumstances of the case and after an opportunity to the petitioner to show cause passed an order on 26th February, 1988 asking the petitioner to furnish a security of Rs. 1 lakh for payment of taxes and the said demand is quite lawful. The petitioner has however, filed an affidavit-in-reply controverting the allegations and reiterated the stand taken in the writ petition.
(3.) Having heard the learned lawyers of both sides and upon perusal of the materials on record, it appears that this case raises a short point of law to be answered. As to whether there is any provision in Sales Tax Law to demand security and the impugned order passed by the respondent No. 1 is justified or not. The impugned order dated 27th February, 1986 was passed by the Assistant Commissioner of Commercial Taxes, Calcutta (North Circle), demanding a security of Rs. 1 lakh from the petitioner is due to the reasons that there is no immovable property of the proprietor and it is financially considered not sound and the potential tax liability appears to be considerable. The said security demand was made under Section 7(4a)(i) of the Act. Unfortunately, the said section does not provide the grounds mentioned in the order. Undisputedly, there is no outstanding of the assessed tax and the advance tax was paid on the request of the Commercial Tax Officer. Previously, a writ petition was filed by the petitioner challenging the action to issue a notice to show cause as to why the eligibility certificate should not be made invalid. The said writ petition was disposed of by the Honourable Mr. Justice Bhagabati Prasad Banerjee and the notice was quashed by order dated 21st April, 1988. Since 1985 the books of accounts were seized and no specific case has been made out for alleged discrepancies in the books of accounts produced before two authorities as mentioned in the affidavit-in-opposition.;