N. Iqbal vs Deputy Commercial Tax Officer, Group I, Enforcement Wing I, Madras-6 and others

P.S. Mishra, J.—Heard learned counsel for the petitioner and the learned Additional Government Pleader (Taxes) for the respondents. The

petitioner has moved this Court alleging that quite a few documents and records allegedly concerning/touching their business have been seized by

the respondents and the petitioner has been subjected to a penalty proceedings but has no been allowed either the return of the seized

documents/records, etc. or copied thereof.

My attention has been drawn to the provision in section 41 of the Tamil Nadu General Sales Tax Act, 1959, with the proviso hereto which

states :

(1) Any officer empowered by the Government in this behalf may, for the purposes of this Act require any dealer to produce before him the

accounts, registers, records and other documents, and to furnish any other information relating to his business.

(2) All accounts, registers, records and other documents maintained by a dealer in the course of his business the goods in his possession, and his

offices, shops, godowns, vessels or vehicles shall be open to inspection at all reasonable times by such officer :

Provided that no residential accommodation (not being a place of business-cum-residence) shall be entered into and searched by such officer

except on the authority of a search warrant issued by a Magistrate having jurisdiction over the area, and all searches under this sub-section shall so

far as may be be made in accordance with the provisions of the Code of Criminal Procedure, 1898 (Central Act V of 1898).

(3) If any such officer has reason to suspect that any dealer is attempting to evade the payment of any tax, fee or other amount due from him under

this Act, he may, for reasons to be recorded in writing, seize such accounts, registers, records or other documents of the dealer as he may consider

necessary, and shall give the dealer a receipt for the same.

The accounts, registers, records and documents so seized shall be retained by such officer only for so long as may be necessary for their

examination and for an inquiry or proceeding under this Act :

Provided that, such accounts registers, records and documents shall not be retained for more than thirty days at a time except with the permission

of the next higher authority in which case they could be retained up to a period of ninety days at a time.

A perusal of the provisions aforementioned shows that a power to seize and retain has been given for the period as long as it may be necessary

for examination of the documents etc., and for enquiry or proceeding under the Act. The proviso thereto when read in the light of the purpose for

seizure and retention, cannot mean that it must be returned after the expiry of the period of thirty days or in no case be retained beyond a period of

ninety days. Ordinarily it should be so; but not when it is for examination enquiry or proceeding as aforesaid. However, no closer examination of

this aspect of the matter is necessary as learned counsel for the petitioner has not disputed the power to retain documents, etc., even beyond a

period of ninety days. He has however submitted that his defence has suffered and is likely to suffer further if he is not allowed at least to obtain

photo copies/xerox copies of the seized documents, etc. It is indeed, reasonable to observe that in such a situation as the one apprehended or

alleged by the petitioner, he must be provided with the opportunity to know the contents of the documents etc., seized as well as opportunity to

explain the discrepancies, if any. That he can have only by either the return of the documents or copies thereof provided to him, or in exceptional

cases by permitting inspection of such seized documents, etc. In the instant case, I find nothing unreasonable in the prayer of the petitioner that

xerox/photo copies of the seized documents, etc., be allowed and furnished to him at his cost. The respondents accordingly are directed to make

all documents etc., seized from the custody of the petitioner available for being photographed/xeroxed and those copies prepared/obtained at the

cost of the petitioner. The petitioner is directed to appear before the Deputy Commercial Tax Officer, Group I Enforcement Wing I, with a petition

to the said effect. On receipt of the petition, the Deputy Commercial Tax Officer shall forthwith fix a date and make the seized documents, etc.,

available for being photographed/xeroxed and copies prepared for delivery to the petitioner. The petitioner shall, however be liable for the entire

cost of the preparation of xerox/photo copies of the seized documents, etc. With the direction as above, this petition is disposed of.

Writ petition disposed of accordingly.