M/S Sri Krishna Enterprise, Karitola, Chawk Bazar Road, Bilasipara, Dhubri, Assam v. The State of Assam

Judgment

#1. Commissioner & Secretary to the Government of Assam, Finance (Taxation) Department, Dispur, Guwahati - 781006 The Commissioner

#2. Kar Bhawan, Dispur, Guwahati – 781006. Taxes, Assam

#3. The Additional Commissioner of Taxes, Assam, Kar Bhawan, Dispur, Guwahati – 781006. The

#4. Assam, Kar Bhawan, Dispur, Guwahati – 781006. Commissioner Joint Taxes, The Deputy Commissioner Taxes, 5. Guwahati, Zone-B, Kar Bhawan, Dispur, Guwahati – 781006.

#6. The Superintendent of Taxes, Dhubri, Assam.

#7. The Superintendent of Taxes, Office of the Deputy Commissioner of Taxes, Guwahati Zone-B, Kar Bhawan, Dispur, Guwahati - 781006. … ..Respondents Page No.# 2/7

#2. WRIT APPEAL NO.4 OF 2022

M/S Sri Krishna Enterprise, Karitola, Chawk Bazar Road, Bilasipara, Dhubri, Assam, represented by its Partner Shri Satyajit Saha, resident of Bilasipara, Dhubri, Assam. … .. Appellant -Versus- The State of Assam, represented by the 1. Commissioner & Secretary to the Government of Assam, Finance (Taxation) Department, Dispur, Guwahati - 781006 The Commissioner

#2. Kar Bhawan, Dispur, Guwahati – 781006. Taxes, Assam

#3. The Additional Commissioner of Taxes, Assam, Kar Bhawan, Dispur, Guwahati – 781006. The

#4. Assam, Kar Bhawan, Dispur, Guwahati – 781006. Commissioner Joint Taxes, The Deputy Commissioner

#5. Taxes, Guwahati, Zone-B, Kar Bhawan, Dispur, Guwahati – 781006.

#6. The Superintendent of Taxes, Dhubri, Assam.

#7. The Superintendent of Taxes, Office of the Deputy Commissioner of Taxes, Guwahati Zone-B, Kar Bhawan, Dispur, Guwahati - 781006. … ..Respondents – B E F O R E – HON’BLE THE CHIEF JUSTICE MR. VIJAY BISHNOI HON’BLE MR. JUSTICE N. UNNI KRISHNAN NAIR For the Appellant(s) : Dr. B.P. Todi, Senior Advocate, assisted by Dr. A. Todi, Advocate. For the Respondent(s) : Mr. B. Choudhury, Standing Counsel, Finance & Taxation Department. Date of Hearing : 20.02.2025. Date of judgment : 20.02.2025. Page No.# 3/7 J UDGMENT & O RDER (ORAL) (Vijay Bishnoi, CJ) These writ appeals are preferred by the appellants being aggrieved with the common order dated 05.11.2019 passed in WP(C) No.6363/2014 and WP(C) No.6364/2014 and the orders dated 25.01.2021 passed in I.A. (Civil) No.956/2020 and I.A. (Civil) No.1262/2020.

#2. Brief facts of the cases are that the appellants approached the Writ Court by way of filing WP(C) No.6363/2014 and WP(C) No.6364/2014 assailing the search and seizure proceedings conducted in the appellants’ Firm on

03.09.2014 by the Taxation Authorities, in exercise of powers conferred under Sections 74(3) and 74(4) of the Assam Value Added Tax Act, 2003. The main contention raised by the appellants before the Writ Court was that the respondent authorities had conducted the aforesaid search and seizure proceedings without following the due process of law.

#3. The respondent State and the concerned Department opposed the writ petitions by filing an affidavit-in-opposition taking a stand that while conducting the search and seizure proceedings in the appellants’ Firm on

03.09.2014, the procedure provided under the law had been followed in full letter and spirit.

#4. The learned Single Judge, while taking into consideration the provisions of the Code of Criminal Procedure, 1973 in Sections 46, 47, 51 and 100, has come to the conclusion that while conducting the search and seizure proceedings, the respondent authorities ought to have followed the procedure laid down under Sections 47 and 100 of the Code of Criminal Procedure, Page No.# 4/7 because detail procedure for search and seizure has not been provided in the Assam Value Added Tax Act, 2003. At the same time, the learned Single Judge has not interfered with the search and seizure proceedings effected way back on

03.09.2014, while observing that since much time had already elapsed after conducting the search and seizure proceedings, it may not be necessary to make any further observation except to hold that if any cause of action still survives, the appellants will be at liberty to approach the appropriate forum. It is to be noticed that while passing the impugned order on

05.11.2019, no one appeared on behalf of the appellants before the learned Single Judge.

#5. It appears that after the decision dated 05.11.2019, the appellants moved I.A. (Civil) No.956/2020 and I.A. (Civil) No.1262/2020 in the writ petitions, which were disposed of vide order dated 05.11.2019, seeking clarification or direction declaring the impugned process of search and seizure as illegal and improper, with a further prayer that the subsequent assessment order dated 31.12.2014 and the notice of demand dated 02.01.2015, issued during the pendency of the writ petitions and a further notice of demand dated

30.10.2020 issued after disposal of the writ petitions be set aside.

#6. The learned Single Judge has disposed of the said I.A. (Civil) No.956/2020 vide order dated 25.01.2021, which is reproduced hereunder:- “Heard Dr. B. P. Todi, learned senior counsel assisted by Mr. A. Todi, learned counsel for the applicant. Also heard Mr. B. Gogoi, learned Standing Counsel, Taxation Department. The present Interlocutory Application has been filed seeking a 2. direction/declaration to the effect that the process of search and seizure conducted by the authorities was illegal and hence, the impugned demand notice is also illegal. Page No.# 5/7 The present Interlocutory Application has been filed in connection 3. with WP(C) No. 6363/2014, which was disposed of by this Court on 05.11.2019. The said writ petition, WP(C) No. 6363/2014 was filed alleging 4. illegality in conducting the search and seizure of the premises of the applicant firm.

#5. The said writ petition was disposed of in absence of the counsel of the petitioner as none appeared for the petitioner on that day. However, this Court referring to the affidavit-in-opposition filed by the respondents did not go into the correctness of the impugned search and seizure but made an observation that the provisions of CrPC, 1973 ought to be scrupulously adhered to at the time of effecting any search and seizure, viz., while conducting the same under the Assam Value Added Tax Act, 2003.

#6. Since the search and seizure of the documents were effected way back on 03.09.2014, this Court did not make any finding but as regards the validity of the said seizure challenged in the writ petition, but made an observation that if any cause of action still survives, the petitioner would be at liberty to approach the appropriate forum.

#7. It has been stated that after disposal of the said writ petition WP(C) No. 6363/2014 on 05.11.2019, the authorities issued the demand notice on 30.10.2020 purportedly in exercise of the earlier process, which was put to challenge in the aforesaid writ petition.

#8. challenging the said demand notice dated 30.10.2020. Accordingly, the present Interlocutory Application has been filed This Court is of the view that since the aforesaid writ petition, 9. WP(C) No. 6363/2014 has been already disposed of by this Court on 05.11.2019, it would be more appropriate for the applicant to challenge the said demand notice before the appropriate forum, however, not by way of Interlocutory Application to an already disposed of writ petition as sought to be done herein. As to whether a writ petition or a writ appeal is the appropriate forum, it may not be necessary for this Court to make any observation at this stage and it is up to the petitioner/applicant to consider the same.

#10. stands closed.” With the above observation, the present Interlocutory application

#7. By order dated 25.01.2021, I.A. (Civil) No.1262/2020 preferred by the appellant in Writ Appeal No.4/2022 was disposed of by the learned Single Judge, which is also reproduced hereunder:- Page No.# 6/7 “Heard Dr. B. P. Todi, learned senior counsel assisted by Mr. A. Todi, learned counsel for the applicant. Also heard Mr. B. Gogoi, learned Standing Counsel, Taxation Department. The present Interlocutory Application has been filed seeking a 2. direction/declaration to the effect that the process of search and seizure conducted by the authorities was illegal and hence, the impugned demand notice is also illegal.

#3. The present Interlocutory Application has been filed in connection with WP(C) No. 6364/2014, which was disposed of by this Court on 05.11.2019.

#4. The said writ petition, WP(C) No. 6364/2014 was filed alleging illegality in conducting the search and seizure of the premises of the applicant firm.

#5. The said writ petition was disposed of in absence of the counsel of the petitioner as none appeared for the petitioner on that day. However, this Court referring to the affidavit-in-opposition filed by the respondents did not go into the correctness of the impugned search and seizure but made an observation that the provisions of CrPC, 1973 ought to be scrupulously adhered to at the time of effecting any search and seizure, viz., while conducting the same under the Assam Value Added Tax Act, 2003.

#6. Since the search and seizure of the documents were effected way back on 03.09.2014, this Court did not make any finding but as regards the validity of the said seizure challenged in the writ petition, but made an observation that if any cause of action still survives, the petitioner would be at liberty to approach the appropriate forum. It has been stated that after disposal of the said writ petition 7. WP(C) No. 6364/2014 on 05.11.2019, the authorities issued the demand notice on 28.10.2020 (Annexure 2) purportedly in exercise of the earlier process, which was put to challenge in the aforesaid writ petition.

#8. challenging the said demand notice dated 28.10.2020. Accordingly, the present Interlocutory Application has been filed Page No.# 7/7 This Court is of the view that since the aforesaid writ petition, 9. WP(C) No. 6364/2014 has been already disposed of by this Court on 05.11.2019, it would be more appropriate for the applicant to challenge the said demand notice before the appropriate forum, however, not by way of Interlocutory Application to an already disposed of writ petition as sought to be done herein. As to whether a writ petition or a writ appeal is the appropriate forum, it may not be necessary for this Court to make any observation at this stage and it is up to the petitioner/applicant to consider the same.

#10. stands closed. With the above observation, the present Interlocutory application

#8. Having heard the learned counsel appearing for the appellants and after going through the material available on record, we are of the view that since in the order dated 05.11.2019 passed in WP(C) No.6363/2014 and WP(C) No.6364/2014 and orders dated 25.01.2021 passed in I.A. (Civil) No.956/2020 and I.A. (Civil) No.1262/2020 the learned Single Judge has kept it open for the appellants to challenge the validity of the assessment order and the notice of demand issued during the pendency of the writ petitions, or after disposal of the writ petitions, no further order is required to be passed in these writ appeals, the same are, therefore, dismissed. JUDGE CHIEF JUSTICE Comparing Assistant