JHUNJHUNWALA OIL MILLS Vs. STATE OF U P

JUDGEMENT

(1.) The petitioner, M/s. Jhunjhunwala Oil Mills, is a public limited company incorporated under the Indian Companies Act and has its registered office at Jalilpur Parao Ramnagar Road, Varanasi, and is engaged in the manufacture and sale of cattle feed, raw oil, etc. It is a registered dealer under the provisions of U. P. as well as Central Sales Tax Act. On January 31, 1991, a survey was conducted by the respondent No. 3, the Sales Tax Officer "a", SIB Range-I, Varanasi, in the factory premises of the petitioner and the books of accounts and other documents were seized under section 13 of the U. P. Sales Tax Act, 1948 (hereinafter referred to as "the Act" ). The books of account related to the assessment years 1989-90 and 1990-91. It has been averred in the writ petition that the Assistant Commissioner (Assessment), Sales Tax, Moghalsarai, Varanasi, issued a notice dated January 20, 1993, for completing the assessment proceedings for the assessment years 1989-90 and 1990-91 and directed the petitioner to produce its books of accounts and other documents. Copy of the said notice has been filed as annexure 2 to the writ petition. It has been further stated that the petitioner was under the bona fide belief that the seized books of accounts will be returned by the Sales Tax Officer, the respondent No. 3, within a period of 90 days from the date of its seizure but since the documents have not been returned, the petitioner made an application on March 30, 1993, requesting the respondent No. 3 to return the seized books of accounts and other documents. It appears that neither orders were passed nor books of accounts, etc. , were returned to the petitioner which compelled the petitioner to move another application on May 7, 1993, copy of which has been filed as annexure 4 to the writ petition. The petitioner was informed by the respondent No. 4 vide letter dated May 10, 1993 that the Deputy Commissioner (Executive), Sales Tax, Varanasi, had passed orders for retaining the seized books up to the period of 30 days after the first appeal is decided. True copy of the same has been filed as annexure 5 to the writ petition. It has been further stated in the writ petition that since the seizure was effected on January 31, 1991, the seized books can be retained only up to May 1, 1991. The petitioner was not aware about any order having been passed for retention of the seized books and documents, etc. , beyond May 1, 1991. The petitioner also stated that since the books of accounts and other documents were not returned to the petitioner, it was not in a position to prepare balance sheet and profit and loss accounts of the petitioner-company for the years 1990-91 and 1992-93 and since the respondents were proceeding to complete the assessment proceedings for the years 1989-90 and 1990-91, the petitioner approached this Court under article 226 of the Constitution and has prayed for issuance of a mandamus restraining the respondents from completing the assessment proceedings for the years 1989-90 and 1990-91 till the respondent No. 4 returns the seized books of accounts and other documents which were seized by the respondent on January 31, 1991. In the counter-affidavit, it has been alleged that the Deputy Commissioner, Sales Tax (SIB), Varanasi, ordered for the retention of the seized books for a period of 30 days on April 30, 1991. There is no dispute on the point that the order directing retention of seized documents on April 30, 1991 expired on June 15, 1991. It has also been alleged that the Deputy Commissioner again passed an order on June 19, 1991 extending the period till July 15, 1991. Again an order has also been passed on July 12, 1991 extending the period by another 30 days from July 15, 1991 to August 14, 1991. From the facts stated above, it is abundantly clear that there was no order for retaining the documents between June 16, 1991 to June 18, 1991. We have heard Shri Rajesh Kumar Agarwal, learned counsel for the petitioner and the learned Standing Counsel. Learned counsel for the petitioner contended that on the admitted facts of the case, there was no order for retention of the seized books of accounts and other documents between the period June 16, 1991 to June 18, 1991. He further contended that the approval obtained on July 15, 1991, for retention of seized documents for a period of 30 days, i. e. , till August 14, 1991 will not render the retention of seized documents legal from June 16, 1991 to June 18, 1991 and as such the retention of the seized documents became illegal on June 16, 1991 and the respondents have no authority or jurisdiction under the law to retain the seized documents for any longer period than June 16, 1991 and it was a bounded duty of the respondents to return the seized documents to the petitioner. On the basis of the above submission, counsel for the petitioner lastly urged that since the retention of the seized documents from the premises of the petitioner became illegal on June 16, 1991 and the respondents had no jurisdiction to retain the same any further the respondents may be directed to return the same to the petitioner. Learned Standing Counsel, on the contrary, submitted that since approval for retention of seized documents was granted from July 15, 1991 to August 14, 1991, the retention of the seized documents from June 16, 1991 to June 18, 1991 would not be invalid on the ground that the competent authority granted approval on July 15, 1991 for further retention of the documents. Learned counsel for the petitioner in support of his contention placed reliance on a Division Bench decision of this Court reported in 1983 UPTC 1091 (Parasadamal Saktumal, Saharanpur v. State of U. P.) in which the books of account of the petitioner were seized on October 6, 1980 and the respondents were bound to return them to the petitioner by January 4, 1981, i. e. , within a period of 90 days. Approval for retention of the seized documents was obtained for the first time on January 6, 1981, i. e. , after the expiry of a period of 90 days from the seizure. Ninety days' time came to an end of January 4, 1981 and the approval was obtained on January 6, 1981. It was held that the retention of the documents after the expiry of 90 days of seizure became illegal. From the perusal of the above facts, it is clear from the ratio laid down in the case of Parasadamal Saktumal 1983 UPTC 1091 by the Division Bench that once the retention of the documents became illegal after the expiry of 90 days, the approval obtained on a subsequent date will not validate the retention for a period for which no approval was obtained. In the instant case, it is admitted by the parties that there was no approval from June 16, 1991 to June 18, 1991 and as such the retention from June 16, 1991 to June 18, 1991, was illegal and the later approval granted on July 15, 1991 will not validate the retention between June 16, 1991 to June 18, 1991. We have given our thoughtful consideration to the judgment rendered by this Court in the case of Parasadamal Saktumal 1983 UPTC 1091 and we find ourself in full agreement with the law laid down in the above case and we feel that the controversy involved in the instant case is squarely covered by the decision given in the case of Parasadamal Saktumal 1983 UPTC 1091 and hence the petition deserves to be allowed. In the result, the petition succeeds and is allowed. The respondent No. 3 is directed to return the seized documents to the petitioner which were seized on January 31, 1991, from the premises of the petitioner within a period of two weeks from the date of presentation of a certified copy of the order of this Court. Parties shall bear their own costs. Writ petition allowed. .