M/s. Om Electricals and Winding Stores vs Advocate General and Others

Amitava Roy C.J.

The extraordinary jurisdiction of this Court has been sought to be invoked to declare the Section 22(6)(a) &(b) of the Rajasthan Sales Tax Act, 1954 (for short, hereinafter referred to as "the Act") to be ultra vires and also to annul the notices Ex. 6 and Ex. 7 dated 1/3-5-1993 issued by the respondent no. 3 under sections 16 (1)(b) and 22(6)(b) of the Act. During the course of hearing, however, the impugnment of the vires of the above provision of the Act has been abandoned. We have heard Mr. L.R. Mehta, learned Senior Advocate for the petitioner and Mr. V.K. Mathur, learned counsel for the respondents.

The pleaded version of the petitioner as outlined in its pleadings is that it is a partnership firm dealing in electrical goods having annual turn-over on an average of Rs. 4 lacs. According to the petitioner, it at all relevant point of time maintained the necessary accounts in connection with its business. It has averred that on 23.4.1993 at about 12.00 noon, a team of five persons entered its business premises and demanded Rs. 25,000/- and threatened to institute a case of sales tax evasion against it otherwise. The demand having been declined, according to the petitioner, a purported raid of its business premises was conducted. That there was a commotion in course of such an exercise has been mentioned as well. The incident also received media coverage. According to the petitioner, this raid u/s 22(1) of the Act was wholly unauthorized, in the face of the notification no. 700-A:F.3(E)/Tax/CCT/83-100 dated 3.11.1987 requiring all the Commercial Taxes Officers and Assistant Commercial Taxes Officers posted at Jodhpur to obtain a prior written permission from the Divisional Commissioner (Administration) to exercise the powers under the said provision. The petitioner has asserted that no such written permission was taken by the authorities constituting the team that conducted the raid. That eventually, the respondent no. 3-Commercial Taxes Officer, ''C'' Ward, Jodhpur did issue two notices dated 1/3-5-1993 under sections 16(1)(b) and 22(6)(b) of the Act was mentioned as well, however, to repudiate the same to be bereft of jurisdiction. It alleged further that alongwith the notices no document was forwarded evidencing the action taken. Whereas by the notice u/s 16(1)(b) of the Act, it was required to show cause as to why penalty be not imposed for its failure to maintain and produce the relevant purchase vouchers and other records to account for its goods displayed at its premises, by the one u/s 22(6)(b), it was asked to explain as to why appropriate action should not be taken for its failure to maintain such records pertaining to goods enlisted in course of the raid valued at Rs. 35,88,878/-. Situated thus, the petitioner approached this Court for redress.

The respondent no. 3 in his reply while questioning the maintainability of the proceedings on the ground of availability of alternative remedy, asserted that the annual turn over of the petitioner firm was much more than Rs. 4 lacs as disclosed. The answering respondent stated that the petitioner did not maintain a complete account of its business transactions and that on receiving some information regarding evasion of tax by it, two teams as per the orders of the Commercial Taxes Officer, ''C'' Circle, Jodhpur were constituted, one of which including two Assistant Commercial Taxes Officers, visited its business premises. Not only did the answering respondent assert that the exercise undertaken by the team at the spot was resisted by the petitioner''s representatives thereat, he reiterated that the raiding party was authorized to conduct the same and the steps taken by him thereafter on the basis of the materials available on record were warranted in law. Reference was made to the notification no. F.3(E)(7) Tax/CCT/78/58 dated 28.5.1979 to insist that thereby every Assistant Commercial Taxes Officer of a Circle in a District was empowered to exercise his/her power as contemplated in Section 22 of the Act and that the notification dated 3.11.1987, which was relevant only in case such an officer was required to exercise the power beyond his Circle, was inconsequential in the attendant facts and circumstances. The answering respondent clarified that in the case in hand, the raiding team did operate within the territorial limits of the Circle of the Assistant Commercial Taxes Officer comprising the team and thus, the plea of want of jurisdiction or competence was misconceived.

Mr. Mehta referring in particular to Section 22(1) of the Act and the notification dated 3.11.1987 has insistently argued that as admittedly no prior permission in writing from the Divisional Commissioner (Administration) had been obtained by the raiding party, the exercise undertaken by it on 23.4.1993 at the business premises of the petitioner was wholly unauthorized thus, rendering the same as well as all consequential steps void ab initio. The learned Senior Counsel has argued further that in absence of any tangible material whatsoever even to infer that the petitioner''s goods at its premises were unaccounted for, the purported action taken under sections 16(1)(b) and 22(6)(b) of the Act is patently mechanical and arbitrary and was induced by extraneous considerations. Mr. Mehta has thus submitted that the notices dated 1/3-5-1993 under these provisions of the Act are non est and are liable to be adjudged as such. Without prejudice to this, the learned Senior Counsel has maintained that as the goods enlisted in the document referred to in the notice u/s 22 (6)(b) had not admittedly been seized, there would with time remain no basis to identify the same, thus, demonstrating the frivolity of the process.

Mr. Mathur, as against this, while impeaching the maintainability of the writ proceedings for non-exhaustion of alternative remedy, has submitted that on a conjoint reading of the notifications of 1979 and 1987, it is apparent that for Assistant Commercial Taxes Officer to function in a circle in which he/she is posted, no prior written permission of the Divisional Commissioner (Administration) is necessary. Without prejudice to this, the learned counsel has referred to the recorded proceedings (Ex. 10) pertaining to the case, to contend that prior permission over telephone from the Divisional Commissioner (Administration), Anti-Evasion, Jodhpur had in-fact been taken to constitute the raiding party that had visited the business premises of the petitioner and that in any view of the matter, the impugned action by all means is competent and authorized in law.

We have analyzed the pleaded facts and the documents available on record as well as the arguments based thereon.

It would be appropriate at the threshold to notice contents of the notifications dated 28.5.1979 and 3.11.1987 in seriatim:

S. No. 444: F.3(E)(7) Tax/CCT/78/58 dated 28.5.1979 S.O. 35. In pursuance of S.22, RST Act, 1954 I.D.C. Joseph Commissioner, Commercial Taxes, Rajasthan, Jaipur hereby authorise every Assistant Commercial Taxes Officer in a Circle to exercise all the powers under the aforesaid section in respect of all the other wards of the Circle, in addition to that in which he has been posted and is already enjoying inherent powers being an AA.

S. No. 700A: F.3(E) Tax/CCT/83-100 dated 3.11.1987

A plain reading of the texts quoted hereinabove would evince that whereas vide notification dated 28.5.1979, the Commissioner, Commercial Taxes, Rajasthan, Jaipur had thereby authorized every Assistant Commercial Taxes Officer in a Circle to exercise all the powers u/s 22 of the Act in respect of all the other wards of the Circle, in addition to that in which he/she had been posted and had been enjoying such powers, by the notification dated 3.11.1987, the Commissioner, Commercial Taxes, Rajasthan, Jaipur under the same provision did empower all the Commercial Taxes Officers and Assistant Commercial Taxes Officers posted in Jodhpur, Udaipur, Bikaner and Kota towns (Nagars) to exercise all powers as contemplated therein, subject to prior written permission of the Divisional Commissioner (Administration) to that effect. Having regard to the contents of these two notifications, we are unable to persuade ourselves to conclude that in the face of the notification dated 3.11.1987, the Assistant Commercial Taxes Officer posted in a Circle in one or more of the towns (Nagars) referred to therein could exercise all powers u/s 22 of the Act dehors the prior written permission of the Divisional Commissioner (Administration). Had it been so, in our comprehension, the notification 3.11.1987 would neither have been contemplated nor notified. If the interpretation provided on behalf of the Revenue is to be accepted, the notification dated 28.5.1979 would have to be construed to be self sufficient to take care of the eventualities as envisaged by the notification dated 3.11.1987. Admittedly, the raiding team that had visited the petitioner''s business premises had been constituted by the orders of the Commercial Taxes Officer, ''C'' Ward, Jodhpur and included two Assistant Commercial Taxes Officers. Noticeably, the recorded proceedings of this operation do mention that before the constitution of this team, prior permission over phone from the Commissioner (Administration), Anti Evasion, Jodhpur had been obtained. This is indicative of the fact that the same was felt essential in terms of the notification dated 3.11.1987. In this view of the matter, the interpretation provided by the Revenue, if accepted, would render the notification dated 3.11.1987 a mere surplus age, an incident never intended as a consequence of any legislative and/or administrative endeavour. The notification dated 3.11.1987 is a more comprehensive instrument and being later in point of time has an overriding effect over the one dated 28.5.1979 to the extent of overlapping.

It is not the case of the Revenue that any prior written permission of the Divisional Commissioner (Administration) was taken as mandated by the notification dated 3.11.1987 before constituting the team to conduct its operation u/s 22 of the Act at the business premises of the petitioner. Significantly, in terms of Section 22(1) of the Act as well, an assessing authority, or any person not below the rank of an Inspector, Commercial Taxes Department authorized by the Commissioner of Commercial Taxes in this behalf, may, for the purpose of the Act, require any dealer to abide by the directions to be issued to it as is contemplated therein. Proviso to Section 22(1) obligates that no person below the rank of Assistant Commercial Taxes Officer shall be authorized by the Commissioner to exercise any powers under sub-sections (3) to (6). The apparent legislative prescript is to restrict the categories of the authorities under the Act to exercise the powers u/s 22 thereof. Any failure to comply with the enjoinments as engrafted therein, in our estimate, thus would render the action by an authority not competent to undertake the same, invalid.

In the above view of the matter, we are constrained to hold that the operation conducted by the Revenue at the business premises of the petitioner on 23.4.1993 and the steps taken consequential thereto are vitiated for want of authority under the Act, thus rendering the same non est. In view of this conclusion, it is not essential to examine other challenges pertaining to notices under sections 16(1)(b) and 22(6)(b) of the Act. These notices (Ex. 6 and Ex. 7) dated 1/3-5-1993 are accordingly quashed. We make it clear that we have not adjudicated upon the challenge to the vires of Section 22(6)(a) & (b) of the Act. The petition is thus allowed in the above terms.