C KUNHIKANNAN NAIR Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner is a dealer at Tellicherry. His shop and godown were searched by the second respondent, the Intelligence Officer, Agricultural Income Tax and Sales Tax, Cannanore on 28-3-1969. He found that certain articles which were in the shop and the godown had not been entered in the accounts of the petitioner. Notice was issued to the petitioner to show cause why action should not be taken against him under S.28(4) of the Kerala General Sales Tax Act, 1963. The petitioner submitted his explanation, Ext. P4 dated 3-4-1969 stating that all the articles had been actually entered in his books of account. He also contended that the search and seizure were illegal, and that S.28(4) of the Act was unconstitutional in the light of the decision of the Supreme Court in Board of Revenue v. R. S. Jhaver, AIR 1968 SC 59 . In the meanwhile the goods seized by the second respondent were released to the petitioner on furnishing cash security for a sum of Rs. 1269. The second respondent did not take any further action for some time. The petitioner therefore requested the second respondent by letter, Ext. P5 dated 7-6-1969, for the matter being disposed of without further delay. Thereupon the second respondent passed an order, Ext. P6 dated 17-6-1969, overruling the petitioner's objection and levying on the petitioner a penalty of Rs. 1269 in respect of the alleged unaccounted goods found with the petitioner. This writ petition has been filed to quash Ext. P6.

(2.) Counsel for the petitioner contends that S.28(4) of the Act is unconstitutional, in the light of the aforesaid decision of the Supreme Court. That decision was concerned with the validity of S.41(4) of the Madras General Sales Tax Act, 1969. Though there is some difference between the language employed in the Madras Statute and the Kerala Statute, the purport and effect of both the sections are the same. That decision applies to the instant case. It follows that S.28(4) of the Kerala General Sales Tax Act 1963 is unconstitutional, as it is beyond the Legislative powers of the State to enact the same. The same view has been taken by the Rajasthan High Court in Hiralal Changunlal v. State AIR 1968 Rajasthan 118, in respect of S.22(6) of the Rajasthan Sales Tax Act 1964 which corresponds to S.41(4) of the Madras Act and S.28(4) of the Kerala Act.

(3.) In the result, I quash Ext. P6 and direct the respondents to refund to the petitioner within one month from date hereof the sum of Rs. 1269 which has been recovered from him by way of cash security. In the circumstances of the case there will be no order as to costs.