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2022 Supreme(Gau) 317
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
SUDHANSHU DHULIA, SOUMITRA SAIKIA, JJ.
M/s Om Carrying Corporation – Petitioner
Versus
The State of Assam – Respondent
WP (C) No. 3383 of 2005
Decided On : 06-05-2022
Advocate Appeared:
For the Petitioner: S.K. Muktar.
For the Respondent: B. Choudhury.
Point of Law : Even if some relevant material or evidence is seized or is available to the department pursuant to the search which was supposedly conducted illegally or in contravention of the provisions of the Act, then such relevant material was liable to be used and cannot be directed to be excluded from the evidence collected for the purposes of proceeding under the relevant Act.
Headnote:
Assam General Sales Tax Act, 1993 - Section 2(33), 3, 4, 44, 45, 46A, 46(2)(a), 44(3), 44(1), 46A(4), 61 - Bengal Public Demand Recovery Act, 1913 - Section 7, 10 - Procedure for production, inspection, seizure of accounts, documents as well as search for premises - Even if some relevant material or evidence is seized or is available to department pursuant to search which was supposedly conducted illegally or in contravention of the provisions of Act, then such relevant material was liable to be used and cannot be directed to be excluded from the evidence collected for the purposes of proceeding under the relevant Act (Para 19).
Findings of the Court :
Section 4, as it stood prior to the interference by this court, provides that “jurisdiction of the tax authority was not to be called into question” - Under the provision of section 4, as it then stood, no person was entitled to call into question the jurisdiction of any authority under section 3 after expiry of 90 days from the date of receipt by him any notice under this Act from such authority - There is no bar for this court to deal with this matter as the vires of section 4 or any question relating to vires of section 4 is not an issue in the present proceeding, section 4 of the Act of 1993 having been set aside by a Co-ordinate Bench of this Court - As discussed above, respondent no. 5 is a competent officer as prescribed under section 3 of the Act and no challenge to the authority or power of the officers empowered under section 3 of the Act have been made by the petitioner - Only ground of the challenge is that the respondent no. 5 was not a member of the vigilance group or wing on the date when the search and seizure was made. Since Court have already held that unless a challenge is made that the search was conducted by an officer not empowered under section 3 of Act, Court are not required to address the said question as it is not before us - That apart, the materials recovered during a search, which may not have been conducted as per the provisions of law, are also admissible in evidence and it is permissible to take consequential actions under the provisions of law, as have been done in present case.
Result : Writ petition dismissed.
JUDGMENT :
SOUMITRA SAIKIA, J.
1. Heard Mr. S.K. Muktar, learned counsel for the petitioners. Also heard Mr. B. Choudhury, learned counsel appearing for the respondents.
2. The petitioner No. 1 is a partnership firm carrying on the business of transportation in the States of Bihar, Bengal and Assam and the petitioner No. 2 is the manager of the petitioner No. 1. The petitioner No. 1 is registered as a ‘transporter’ under section 46A of the Assam General Sales Tax Act, 1993 (hereinafter referred to as “Act of 1993”) and it also possesses a certificate of registration issued by the jurisdictional officer under the Act of 1993, read with Assam General Sales Tax Rules, 1993 (hereinafter referred to as “Rules of 1993”). The petitioners have been regularly submitting statements/monthly tax returns in respect of the goods transported into as well as transported out of Assam. The head office of the petitioner firm is located in Kolkata in the State of West Bengal and it has its branch offices in Guwahati and in other districts of Assam.
3. On 28.01.2004, the respondent no. 5 visited the branch office of the petitioner firm in Guwahati, at Dispur, and identified himself as the Superintendent of Taxes, Vigilance Group, and served notice upon the petitioner firm under section 46(2)(a) of the Act of 1993 directing the petitioners to produce all the records and documents relating to transport and delivery of various consignments of goods made during the period from October, 2003 up to date. Thereafter, a search was conducted at the branch office of the petitioners and the respondent no. 5, in exercise of power under section 44(3) of the Act of 1993, seized some records/documents including books of accounts. Seizure list was prepared and a copy of the same was also served upon the petitioner No. 2.
4. Thereafter, the respondent no. 5 issued a notice dated 29.01.2004 to the petitioner No. 1 under section 44(1) of the Act of 1993 requiring the petitioner to appear before him 03.02.2004 in the office of the respondent no. 5 and to produce some more documents. On 17.02.2004, a Show Cause notice was issued by the respondent no. 5 requiring the petitioner No. 1 to show cause as to why penalty under section 46A(4) of the Act of 1993 should not be imposed upon the petitioner company and why the penalty and taxes should not be realized. The petitioner company submitted its reply to the Show Cause notice on 22.02.2004 denying the charge in the Show Cause notice. Thereafter, another notice dated 27.02.2004 was issued by the respondent no. 5 asking the petitioner to appear before him on 03.03.2004 and to produce documentary evidence. On 02.03.2004 the petitioner company submitted its reply to the said notice requesting the respondent authority not to realize tax and/or to impose penalty. The respondent no. 5 thereafter worked out an amount of Rs. 2,75,000/- as tax payable by the petitioner and verbally directed the petitioner to deposit the same, which the petitioner deposited vide Treasury Challan dated 30.03.2004.
5. About four months thereafter the petitioner No. 1 was served with an Assessment order-cum-Notice of Demand dated 05.08.2004, issued by the respondent no. 5 under section 46A(4), whereby tax was assessed at Rs. 5,68,942/- (Rupees five lakh sixty-eight thousand nine hundred and forty-two) and also penalty was imposed to the tune of Rs. 17,06,826/- (Rupees seventeen lakh six thousand eight hundred and twenty-six). Since the aforesaid amount could not be paid by the petitioner No. 1 immediately, another notice dated 21.09.2004 was issued by the respondent no. 4 directing the petitioner company to deposit the amount within a period of seven days from the date of receipt of the notice. It was also mentioned in the said notice that failing to deposit the amount within the period stipulated therein, recovery proceedings under Bengal Public Payment Recovery Act, 1913 (hereinafter referred to as “Recovery Act of 1913”) will be initiated against the peti
