SUPER CONSTRUCTION Vs. COMMISSIONER, SALES TAX

JUDGEMENT

(1.) IN the present writ petition, the petitioner assails the order dated 29.12.1997 (Annexure -1) passed by the Assistant Commissioner, Sales Tax (Opposite party No. 1) (hereinafter called "ACST") as highly prejudicial, fully arbitrary or in contravention to the scheme of the Orissa Sales Tax Act, 1947 (hereinafter called as, "the OST Act"). Even though in the order passed under Annexure -1 the ACST turned down various claims of the petitioner the learned counsel for the petitioner, at the time of hearing of the writ petition confined his argument only to one of the grievances, i.e. the opposite parties are not justified in refusing to return the books of account taken from the petitioner in course of inspection to the place of business of the petitioner on 19.10.1995 in spite of repeated requests and for retaining the same without following procedure of law.

(2.) THE petitioners case is that it carries on business in purchase and sale of Mosaic Chips, White Plaster Paris, Colour Oxide, Oxalic Acids and Wax Polish etc. on wholesale as well as on retail basis, at his business premises functioning at 51, Bhagawanpur, Industrial Estate, Patrapada, Bhubaneswar. It is registered under the OST Act and Central Sales Tax Act, 1956 (hereinafter called 'CST Act). For the purpose of its business, the petitioner maintains regular books of account like purchase register, sale register, stock register etc. On 19.10.1995 the Sales Tax Officer Investigation Unit, Bhubaneswar visited the petitioners place of business and carried with him books of account, documents, register etc. relating to the year 1994 -95. The petitioner made application before the Sales Tax Officer Investigation Unit, Bhubaneswar on 30.3.1996 for return of the seized books of account, documents and registers, but the same were not returned to him. On the basis of the seized books of account assessment for the year 1994 -95 was completed against which the petitioner filed First Appeal before the Assistant Commissioner of Sales Tax (hereinafter called as "ACST"). On 20.10.1997 the petitioner also prayed to the learned ACST for return of the books of account which were seized from the petitioner. The learned ACST turned down the petitioners request on the ground that those documents have become part of the assessment record and those cannot be parted with. This action of the ACST has been seriously challenged by the learned counsel on the ground that it is violative of the provisions contained in Sub -section (3) of Section 16 of the OST Act read with Rule 46 of the OST Rules. Relying on these provisions, he submitted that the STO cannot retain the seized books of account for a period exceeding six months unless the ACST in -charge of that Range authorizes retention of those books of account by recording the reason of retention of those documents. According to the petitioner, unless the books of account/documents are returned to him, he would be deprived of rebutting the charges raised against him on the basis of which assessment for the year 1994 -95 has been made.

(3.) IN view of rival contentions of respective parties the question which falls for consideration by this Court is whether on the facts and circumstances of the case, the opposite parties are justified in retaining the books of account seized from the petitioner on 19.10.1995 till date without following the procedure contained in Section 16(3) of OST Act read with Rule 46 of OST Rules on the ground that they form part of the assessment record. In order to deal with the above question, it is necessary to know what is contained in Sub -section (3) of Section 16 of the OST Act and Rules 46 & 35 of the OST Rules. These provisions are quoted below.