TMI Blog2015 (7) TMI 636X X X X Extracts X X X X X X X X Extracts X X X X ..... impermissible and beyond the authority, power and competence of the authority concerned. Since the petitioner have stated that the authorized representative was compelled to sign on the said letter and issued two cheques covering the said amount, this Court cannot decide whether the same was taken forcibly or was issued voluntarily. Furthermore, a sum of ₹ 1,00,00,000/- has already been deposited with the respondent authorities through RTGS and in terms of the interim order passed on 12th August, 2013, this Court extended the time for deposit for further sum of ₹ 1,00,00,000 - letter dated 7th June, 2013 issued by the authorized representative of the petitioner-company records the handing over of the two cheques after admitting the service tax liability. Even in the letter dated 27th June, 2013, the petitioner did not raise any objection against the collection of the said amount rather it admitted to have issued such cheques and further recorded that a sum of ₹ 1,00,00,000/- has already been paid as a part payment of service tax on 17th June, 2013 and prayed for the installments to liquidate the balance liabilities. - Decided against assessee. - W.P. NO. 22850 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st, 2013 when the petitioner candidly admits that the pen drive was never seized. An explanation was sought to be offered that the Charter Accountant for the purpose of convenience recorded the word one pen drive in the original seizure list having no intention to blame the respondent authorities. The advocate-on-record while annexing the documents inadvertently photo copied the same without any intention to gain out of it. 4. The learned Advocate for the petitioner further submitted that they would not press the prayer for return of the pen drive. However, the petitioner raises the plea that two cheques covering ₹ 1,00,00,000/-each was forcibly taken from the officer of the petitioner-company which is beyond the authority and the power enshrined under the statute. The respondent replied that the aforesaid cheques were handed over voluntarily upon admitting the service tax liabilities and, therefore, the allegation as to using of force in collecting the said two cheques are false and have no semblance of truth in it. 5. Recording the aforesaid submissions, this Court passed an interim order on 12th August, 2013 permitting the respondents to exchange the affidavits and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seizure, the authorities have to satisfy the existence of a believe upon production of the relevant evidence. The aforesaid proposition is laid down by the Supreme Court in case of Sheo Nath Singh v. Appellate Asstt. CIT [1971] 82 ITR 147. By saying that there must have a reason to believe as to the concealment, evasion of tax liability before taking any action for search and seizure, the petitioner relies upon a judgment of the Madras High Court in case of Gulab Co. v. Superintendent of Central Excise (Preventive) [1975] 98 ITR 581 (Mad). The petitioner further says that the expression reason to believe should be interpreted as believe in good faith having connection or bearing to the formation thereof and relied upon a judgment of the Supreme Court in case of Dr Partap Singh v. Director of Enforcement, Foreign Exchange Regulation Act [1985] 3 SCC 72. Lastly the reliance is placed upon a judgment of this Court in case of Naresh Kumar Co. v. Union of India [2010] 28 STT 21 in support of the contention that the authorities are not empowered to collect an amount at the time of raid but to take recourse to the measures provided in the statute. 8. Refuting the contention of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner narrates the story of service tax audit and the payment of the service tax as and when the spot memos are issued by the statutory auditor. Paragraph 8 recorded the event of raid having conducted at the instance of the service tax authority and in Paragraph 9 thereof, the details of the seized documents and collections of two cheques of ₹ 1,00,00,000/- each are averred therein. However, it is stated that those cheques were collected by compelling the representative to admit the service tax liability. Paragraph 10 to 12 is restricted to the statements on preparation of the summons and compelling the representative of the petitioner-company to sign on it and request to return the seized documents. Paragraph 13 relates to the issuance of the notice dated June 6, 2013, issued by the Superintendent (Audit), Group XVI, Service Tax Commissionerate, Kolkata and reply to the said notice. In Paragraph 14, the petitioner admits to have paid a sum of ₹ 1,00,00,000/-whereas in Paragraph 15 16, there is an averment as to renewal of the prayer for release of the documents including the cheques. The Paragraph 17 contains the statement that those cheques covering ₹ 2,00,00, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve satisfaction of the officer but should be held in good faith and not on mere pretence. 13. Assimilation of the ratio culled out from the aforesaid report reason to believe is not synonymous to a subjective satisfaction but based on good faith which is opposed to a mere pretence. The belief cannot be formed on mere rumour, gossip or suspicion but based on something which have a relevance and nexus to the concealment or evasion of the service tax. 14. It is a categorical stand of the respondents that though the statutory audit was continuing but there was a concealment of the information that the petitioner is operating from the another premises and has deliberately and consciously evaded the service tax. It is further stated by the respondents that the registration certificate does not show the address where the petitioner was operating its business activities. The scrutiny of the Writ Court in a challenge to an action for search and seizure is very microscopic and limited and is not meant for roving scrutiny on the satisfaction on reason to believe upon looking the various documents and the information. If the satisfaction has been placed before the Court which may rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount at the time of raid under threat and coercion. Though the respondent authorities took the stand that the same was given voluntarily but it appears that immediately upon the collection of the cheque, an objection was raised that the said amount was, in fact, taken under threat and coercion. In the above backdrop, it is held that once the petitioner alleges that the said payment was not made voluntarily and objection is immediately raised, the authority has no jurisdiction to collect any amount at the time of raid simply as it does not empower legally to do so. 19. The aforesaid case is distinguishable, for the simple reason that the letter dated 7th June, 2013 issued by the authorized representative of the petitioner-company records the handing over of the two cheques after admitting the service tax liability. Even in the letter dated 27th June, 2013, the petitioner did not raise any objection against the collection of the said amount rather it admitted to have issued such cheques and further recorded that a sum of ₹ 1,00,00,000/- has already been paid as a part payment of service tax on 17th June, 2013 and prayed for the installments to liquidate the balance liabilit ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
