TMI Blog1991 (9) TMI 336X X X X Extracts X X X X X X X X Extracts X X X X ..... bility for tax or other dues under this Act, and that anything necessary for the purpose of an investigation into his liability may be found in any book, account, register or document, he may seize such book, account, register or document as may be necessary. The officer seizing the book, account, register or document shall forthwith grant a receipt for the same and shall, (a) in the case of book, account, register or document which was being used at the time of seizing, within a period of ten days from the date of seizure and (b) in any other case, within a period of sixty days from the date of seizure; return it to the dealer or the person from whose custody it was seized after examination or after having such copies or extracts taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a dwelling house shall be made- (i) after sun-set and before the sun-rise; (ii) by an officer below the rank of an Excise and Taxation Officer; (iii) without obtaining the sanction of the Deputy Commissioner or SubDivisional Officer (Civil) within whose jurisdiction such house is situated. " A plain reading of these provisions would show that seizure of accounts is permissible only if there are reasonable grounds for believing that the dealer is trying to evade liability for tax or other dues under the Act. Further, there is a time-limit in the period for which any books of account, can be retained, namely, 10 days in the case of any book, account, register or document which is in use at the time of seizure and sixty days in any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) and (4) of section 36 of the Act. The main reliance of the counsel for the petitioners being upon the judgment of the Supreme Court in Commissioner of Commercial Taxes v. Ramkishan Shrikishan Jhaver [1967] 20 STC 453; AIR 1968 SC 59, wherein holding the provisions relating to search and seizure, as contained in subsections (2) and (3) of section 41 of the Madras General Sales Tax Act, 1959, to be valid, one of the reasons relied upon was the applicability of the provisions of section 165 of the Code of Criminal Procedure, to searches made under the Act. Great stress was laid by the counsel for the petitioners upon the nonapplicability of these provisions to searches under sub-section (4) of section 36 of the Act. A complete answer to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e required to mention in the receipt given by him the number of places where the signature and seal of such officer has been affixed on each account, register or document:" Various reasons were put forth for the contentions that sub-section (3) of section 13 of the Act conferred unguided and arbitrary power, one amongst them being that the officer searching and seizing the account papers was not required to record the reasons for his belief nor were the provisions of section 165 of the Code of Criminal Procedure regulating the procedure for search and seizure made applicable. It was held "article 19(5) of the Constitution of India does not force the 'reasonable' into a procrustean bed. It is a part of an instrument which is designed to ke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ooks and other documents cannot be obtained otherwise, at the time and in the manner requisite to ensure against evasion of liability under the Act. It is also worthy of note that such power of search and seizure is also available under sections 132 and 132-A of the Income-tax Act and rules 112 and 112-A thereof, which has been upheld by the Supreme Court in Pooran Mal v. Director of Inspection (Investigation), Income-tax [1974] 93 ITR 505; AIR 1974 SC 348. It was specifically held there that this power was neither discriminatory under article 14 nor violative of article 19(1)(f) and (g) of the Constitution of India. Such thus being the settled position in law and respectfully agreeing with the judicial precedent provided by Agrawal Eng ..... X X X X Extracts X X X X X X X X Extracts X X X X
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