TaxTMI 
TaxTMI 
2008 (7) TMI 858
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....ms 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 October 19, 1995 in spite of repeated requests and for retaining the same without following procedure of law. The petitioner's 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, Bhub....
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....e STO cannot retain the seized books of account for a period exceeding six months unless the ACST in-charge of that Range authorises retention of those books of account by recording the reason of retention of those documents. According to the petitioner, unless the books of account/ ocuments 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. Per contra, the learned counsel appearing on behalf of the Revenue submits that in view of the provisions contained in rule 35 of the OST Rules the books of account seized from the petitioner form part of the assessment record and those cannot be returned to the petitioner unless all the proceedings ....
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....of Assistant Commissioner of Sales Tax in-charge of a Range constituted under sub-rule (5) of rule 3 seizes any books, registers or documents of any dealer by virtue of power of the Commissioner under section 16 delegated to him, he shall not retain them or cause them to be retained for a period exceeding six months unless the Assistant Commissioner of Sales Tax in charge of the Range having jurisdiction over the local area in which place of business of the dealer is situated, has for reasons to be recorded in writing authorised the retention of the books, registers or documents so seized for a longer period: Provided further that such longer period shall not be more than six months at a time. Rule 35. Assessment case record.-(1) All the p....
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....l be useful to refer to some of the decisions of the honourable apex court and other High Courts: The honourable Supreme Court while dealing with seizure and retention of documents under the Income-tax Act, 1961 in the case of Commissioner of Income-tax, West Bengal III v. Oriental Rubber Works reported in [1984] 145 ITR 477 held that two conditions must be fulfilled before an extended retention of books or documents seized in a search conducted under section 132 becomes permissible in law: (a) Reasons in writing must be recorded by the authorised officer or the ITO concerned seeking the Commissioner's approval; and (b) the Commissioner's approval for such extended retention must be obtained. If either of these conditions is not fu....
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....er recording the reasons and the said impounded books of account or other documents cannot be retained for a period of more than fifteen days unless there is prior sanction by the authority mentioned therein. The Allahabad High Court in the case of Krishna Kumar Sharma v. Commissioner of Income-tax reported in [1991] 192 ITR 57 held that there was no evidence of an order passed under section 132(8) of the Income-tax Act, 1961. Hence, the books of account seized from the petitioner's premises in February, 1986, had to be returned to him. The Allahabad High Court in another decision in the case of Variety General Stores v. Income-tax Officer reported in [1993] 202 ITR 660 directed the Revenue to return the books of account to the assess....
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....ohibited by law to be done, cannot legally be effected by an indirect and circuitous contrivance on the principle of "quando aliquid prohibetur, prohibetur omne per quod devenitur ad illud". In the case at hand, the Revenue fails to satisfy that the conditions stipulated in section 16(3) read with rule 46 have been complied with. The conditions laid down in rule 46 are admittedly not fulfilled. The extended retention of books of account is unlawful and the concerned person from whose custody such books of account and documents were taken acquires a right to get return of the same. Even though section 16(3) and rule 46 do not provide for communication of the recorded reason of Commissioner and ACST's authorisation and recording of reaso....