TMI Blog2003 (12) TMI 600X X X X Extracts X X X X X X X X Extracts X X X X ..... The case of the petitioner is that the petitioner's business is a proprietory business in Kolkata and the same is an unregistered one. From the petitioner's place of business, some documents and records were seized by respondent No. 1, Assistant Commercial Tax Officer (C.T.O.), Bureau of Investigation on the ground that he had reason to suspect that the petitioner had been attempting to evade payment of tax. Actually no tax is payable by the petitioner who has never been assessed by any assessing authority. Section 66 permits seizure of accounts and documents only if the officer has reason to suspect that the dealer is attempting to evade payment of tax. The charging section in a taxing statute creates only liability to pay tax. Question of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the petitioner that the seizure must be preceded by assessment of tax payable cannot have any legal basis. The petitioner though liable to pay tax long ago has not obtained or applied for registration and thus managed to remain out of the tax net. That may very well be the basis of a reasonable suspicion that the petitioner has attempted to evade payment of tax. The tax is payable at the moment the taxable event i.e., sale of taxable goods takes place. Provisions of section 66 also cover attempt to evade payment of tax payable by operation of law. Said provisions cannot be construed with adding words like "due from the dealer after assessment" as appears to be contended by the petitioner. The seizure of books of account and the docu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Tribunal and the interpretation given by the honourable Supreme Court and the honourable High Court in this regard being in favour of the above view, the impugned seizure cannot but be illegal. 4.. The question that needs determination is: Whether seizure of books of account and documents under section 66 of the Act can be legally made from an unregistered dealer on the ground of attempt to evade payment of tax when the tax payable by him has not yet been assessed by the assessing authority? 5.. Admittedly the petitioner carries on business as proprietor and the said business is not registered under the West Bengal Sales Tax Act, 1994. Admittedly there has been seizure of some books of accounts and documents from the business place ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the C.T.O. to fix and determine the liability to pay tax independent of and prior to an assessment made under the Act. It has also been held that liability to pay tax arises out of the charging section, but the same cannot be enforced till the quantification is effected by assessment proceeding. When a dealer is liable to pay tax by reason of the charging section, he is under an obligation to furnish return within a prescribed date before the prescribed authority. If no returns are filed, the dealer is liable to be penalised. Again, if the C.T.O. is not satisfied that the returns furnished by a dealer are correct and complete, a best judgment assessment can be made. At this stage only the C.T.O. may be said to have proceeded to make an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his own understanding of the provisions of section 5 of the Act of 1941 and on his view of facts, but before the deductions are checked and finally settled as allowable and disallowable, no tax due and payable under the Act can come into existence. The provisions of the West Bengal Sales Tax Act, 1994 in this regard are almost similar to the one in the Act of 1941. Even if we analyse the provisions of section 45 or of section 46 of the Act of 1994 we find that the question of payment of tax arises only after assessment. Before that there is only liability to pay and nothing more. Tax at that moment cannot be termed to be due. 6.. Learned State Representative wanted to stress that section 66 does not make any difference between registered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... every corner, we cannot but hold that no question of payment of tax by the petitioner being there, the question of its evasion by the petitioner does not arise and that the seizing officer went beyond his jurisdiction by seizing documents and accounts of the petitioner. The seizure as such has been unlawful. The ground of attempt by the petitioner to evade payment of tax as made cannot be lawfully made in respect of the petitioner-unregistered dealer as a ground of seizure made under Section 66 of the Act. 7.. We accordingly hold that the application must succeed. The application therefore is allowed. We hold that the seizure dated January 17, 2001 of the books of account and documents by the Assistant Commissioner of Commercial Taxes, Bu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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