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TMI Blog2004 (9) TMI 614X X X X Extracts X X X X X X X X Extracts X X X X ..... aler using the veil of a "broker" being proprietor of M/s. Shri Ranisati Company, 30, Maharshi Debendra Road, Kolkata 700 007 had delivered oil cake and de-oiled cake in all forms, an item taxable at the rate of 4 per cent as per serial No. 213 under Schedule IV of the Act 1994. The respondent No. 1 in spite of his liability to pay tax and to obtain compulsory registration under the Act, 1994 did nothing in this regard and he intentionally avoided the payment of taxes. As such pursuant to section 66 of the Act a raid was conducted in the business premises of respondent No. l and in course of raid relevant documents, books of accounts were seized by the raiding party. Pursuant to raid conducted a notice dated November 19, 2001 was issued to the respondent No. l by the Assistant Commissioner of Commercial Taxes, Bureau of Investigation calling upon him for hearing along with relevant books of accounts and records. The respondent No. 1 against this move filed an application under section 8 of Act 1994 registered as case No. 489 of 2001 challenging the validity of seizure as well as notice dated November 19, 2001. 3.. After hearing both sides in connection with Case No. 489 of 2001 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said section prescribes the liability of a dealer other than registered dealer to pay sales tax when gross turnover of sales calculated from the commencement of any year exceeds the taxable quantum at any time within such year. 7.. Section 10 of the Act prescribes special liability of a dealer to pay tax from the day on which he effects his first sale of such goods specified in Schedule IV of the Act. Section 26 of the Act speaks about compulsory registration of dealers. Under this section no dealer shall, while being liable to pay tax under section 9, section 10, section 12 or section 15, carry on business as a dealer unless he has been registered and possesses a certificate of registration. 8. Proviso to section 26 provided that a dealer liable to pay tax under section 9, section 10, section 12 or section 15 shall be allowed two months' time from the date which he is first liable to pay such tax to get himself registered. Section 29 contains provision for imposition of penalty upon a dealer for his failure to get registered. 9.. Section 30 refers to periodical returns and payment of tax. Under section 30(1) of the Act tax payable under this Act shall be paid in the man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [1970] 25 STC 243 (Commissioner of Income-tax, West Bengal) (II) v. Royal Boot House). It is further submitted by Ms. Roy that the tax as defined in section 2(35) means tax payable under the Act 1994. According to Ms. Roy a registered dealer or any other dealer is bound to pay sales tax and file returns on the basis of selfassessment at pre-assessment stage. However, any other dealer other than registered dealer who on the day on which he effects his first sale of goods specified in Schedule IV of section 10 of the Act shall pay sales tax on the basis of self-assessment at the pre-assessed stage, file return and apply for registration. So liability to pay tax starts at pre-assessed stage and in that pre-assessed stage the amount of tax due calculated under the self-assessment has to be paid by the dealer because he is under obligation to do so and this is independent of assessment to be made by C.T.O. According to her this liability to pay tax continues till assessment is made and demand is raised by the C.T.O. for payment of assessed tax. So the liability to pay tax starts from initial stage when there is obligation to do so. It does not depend upon the assessment of tax to be ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he CTO and prior to assessment tax payable by a dealer does not create any obligation or liability to pay tax under the Act. It is, therefore, submitted by Mr. Gupta that tax due and payable by a dealer cannot be independent of assessment. At the pre-assessment stage a dealer has no obligation to pay any tax but it is under an obligation to pay tax at the post-assessment stage. It is further submitted by the learned counsel Mr. Gupta that since the Act does not create any obligation to pay tax prior to assessment the decision arrived at by the learned Judge of Taxation Tribunal should be upheld by this Court. According to Mr. Gupta since there was no assessment of tax fixing liability of respondent No. l he has no obligation to pay any tax and therefore, the question of evasion of tax by him does not arise. It is further submitted by Mr. Gupta that search and seizure conducted by the department should be held to be bad in law because the respondent No. l had neither any obligation to pay any tax nor he evaded the payment of tax. So the search and seizure conducted by the department under section 66 of the Act should be held illegal by this Court. In support of this contention he re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lready observed in this particular case the decisions reported in [1994] 94 STC 422 (SC) (Birla Cement Works v. State of Rajasthan) and [1965] 16 STC 318 (SC) (State of Rajasthan v. Ghasilal) are not applicable. Therefore, the liability of the respondent No. l to pay tax started from the day on which he effected first sale of goods specified in Schedule IV of the Act, 1994 independent of assessment. It is therefore, clear that the tax became due and payable by him from the day on which he effected the first sale referred to above. Therefore, finding of the learned Tribunal Judge in this connection cannot be accepted because in that event a registered dealer will have no obligation to deposit tax along with return at the pre-assessment stage and such a situation is never contemplated in the scheme framed under the Act 1994. 14.. It is admittedly clear that the respondent No. l did not pay any tax which he was obliged to pay under different sections of law of Act 1944. Section 66 is a provision against tax evaders who do not discharge their statutory duty by a voluntary compliance of legal provisions relating to the State's legitimate revenue. The provisions of section 66 are not m ..... 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