TMI Blog1980 (1) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... ith several other officers raided the premises of the petitioner. The search was authorised by a warrant issued by the Judicial Magistrate, First Class, III Court, Belgaum, who has stated in his order that he has reason to believe that the petitioner was in possession of incriminating documents or accounts and they could not be secured by summons or requisitions. 3.. The respondent was an officer of the Intelligence Wing but not a jurisdictional assessing authority of the petitioner. It is alleged by the petitioner that the respondent had absolutely no material to make any allegations regarding evasion of tax and the belief entertained by him was without foundation. It is also alleged that the respondent arbitrarily searched not only the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereinafter referred to as "the Act"). 6.. Let me now examine the contention in detail. The power to search and seize accounts, registers or other documents of a dealer is located under subsection (3) of section 28 of the Act. It provides as follows: "28. (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seized were necessary to prove the evasion of tax, and he went on seizing whatever was found lying on the premises irrespective of any consideration whether they were relevant or useful for any enquiry or proceeding under the Act. The seizure was thus characterised as arbitrary and illegal. 7.. In order to appreciate the contention, we may have a glance at the mahazar prepared by the respondent and the reason if any given by him. The relevant extract of the mahazar runs as follows: "Statement of mahazar in the presence of witnesses today the 2nd February, 1978, at the business-cum-residential premises of M/s. Neminath Brothers, No. 2223, Kacherigalli, Shahapur, Belgaum. Search list In execution of the warrant of search issued by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... including the current account not only belonging to the petitioner-firm, but also of "Padma Industries Engineering Company". The only reason given for seizing those documents is that they were incriminating against the petitioner. The question is whether that reason was sufficient to sustain the seizure. 8.. In Sha Puckaraj Parasmal and Co. v. Commercial Tax Officer (Intelligence) III, South Zone, Bangalore[1980] 45 S.T.C. 488. (W.P. No. 10499 of 1977 disposed of on 23rd March, 1978) this Court observed that if the reasons are not recorded on the basis of which an officer comes to entertain suspicion that the person is attempting to evade the tax, then the seizure would be bad being contrary to section 28(3). It was also observed that it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The acceptance of such submission may defeat the purpose for which the legislature has enacted the provision. The power packed under sub-section (3) of section 28 seems to be based on two different social objectives. The first objective is the avoidance of tax evasion in the business circle where honesty is a rare commodity. The second objective is the safeguarding of the innocent citizenry from officious and overtly-zealous agencies of law enforcement. Our approach should, therefore, be towards a blend of these two objectives. The sub-section, no doubt, appears to confer a greater latitude on the officer concerned in the interest of mobilising public revenue, but it ought not to be construed to make him a tyrannical master. The unbridled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rinciples, the seizure made by the respondent cannot but be regarded as illegal since all that he has stated is that the accounts and documents, which he has seized, are incriminating against the petitioner. That is too bald a statement and hardly a reason for seizing quite a large number of registers and accounts. 12.. Apart from that, the respondent has seized the books of account and registers not only belonging to the petitioner but also those belonging to the Padma Industries Engineering Company, Belgaum. The search warrant issued by the Judicial Magistrate, Belgaum, did not authorise the respondent to search the premises of Padma Industries Engineering Company. The respondent, therefore, had no power to search and seize the books of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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