SRINIVAS JHAWAR AND BROTHERS Vs. DEPUTY COMMISSIONER OF COMMERCIAL TAXES HYDERABAD NORTH DIVISION HYDERABAD

JUDGEMENT

(1.) THE petitioner is a dealer registered under the Andhra Pradesh General Sales Tax Act carrying on business in rice and other foodgrains at Hyderabad. On 20th April, 1959, he purchased 150 bags of rice from another registered dealer Sri Lakshmi Trading Company, Nizamabad, for Rs. 6,320. 75 under invoice No. 3. He also paid sales tax to the seller. According to the petitioner, the goods were despatched to Zaheerabad for sale, but owing to unfavourable market conditions and unfavourable weather, the goods were kept in the house of one Ramisetti at Zaheerabad. On 19th June, 1959, the Special Commercial Tax Officer (Evasions), Hyderabad North, seized the goods on suspicion that they were the goods of one Hullappa who, they suspected, was making clandestine trade in rice. The petitioner requested the Special Commercial Tax Officer (Evasions) to release the goods to him, but the matter was referred to the Deputy Commissioner, Commercial Taxes, for orders. The Deputy Commissioner, without giving any notice and without making any enquiry, passed orders on 18th July, 1959, stating that the goods will be confiscated and sold in public auction on 21st July, 1959, under section 28 (6) of the Andhra Pradesh General Sales Tax Act. The order of the Deputy Commissioner was questioned by the petitioner in W. P. No. 1685 of 1959. The High Court by its order dated 28th November, 1960, directed the 1st respondent (the Deputy Commissioner) to give notice to the petitioner and hold an enquiry as contemplated by section 28 (6) of the Act. While the writ petition was pending in the High Court, the goods were released to the petitioner on his furnishing security. Subsequent to the disposal of the writ petition, the concerned Commercial Tax Officer also made orders of assessment in respect of the years 1959-60 and 1960-61. He accepted the returns submitted by the petitioner (which included the disputed transaction), and did not levy any tax on the petitioner on the basis that the tax had already been paid at the point of first purchase, i. e. , when the rice was purchased by the petitioner from the other dealer. Thereafter there was a stalemate till 1965. In November and December, 1965, some statements were recorded by the Deputy Commissioner of Commercial Taxes. On 10th May, 1966, he passed the impugned order by which he held that the petitioner indulged in clandestine trade and that the transaction was not properly accounted for. The goods having already been released to the petitioner on furnishing security, the Deputy Commissioner directed that the security should be forfeited.

(2.) THE petitioner filed an appeal to the Sales Tax Appellate Tribunal, but the appeal was rejected on the ground that it was not maintainable. Thereupon, the petitioner has invoked the jurisdiction of this court under article 226 of the Constitution. The first point raised by Sri Anantha Babu is that under section 28 (6) of the Act, the officer competent to confiscate the goods is the officer who effected the seizure and that in the present case, the Deputy Commissioner was not the officer that seized the goods; he was, therefore, incompetent to make the order of confiscation. The contention of Sri Anantha Babu appears to be unanswerable. Section 28 (6) of the Act reads as follows :

(3.) IN the result, the writ petition is allowed with costs. Advocate's fee Rs. 100. The securities furnished by the petitioner will be returned to him by the department. Petition allowed.