Gauhati High Court
WA/20/2022 on 20 February, 2025
Page No.# 1/7
GAHC010193612021
2025:GAU-AS:1806-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
1. WRIT APPEAL NO.20 OF 2022
M/S Suraksha Steel Co., Bilasipara, Ward No.12, Dhubri,
Assam, represented by its Proprietor, Smt. Parbati Bala
Saha, Resident of Bilasipara, Dhubri, Assam.
.....Appellant
-Versus-
1. The State of Assam, represented by the
Commissioner & Secretary to the Government of Assam,
Finance (Taxation) Department, Dispur, Guwahati -
781006
2. The Commissioner of Taxes, Assam
Kar Bhawan, Dispur, Guwahati - 781006.
3. The Additional Commissioner of Taxes, Assam, Kar
Bhawan, Dispur, Guwahati - 781006.
4. The Joint Commissioner of Taxes,
Assam, Kar Bhawan, Dispur, Guwahati - 781006.
5. The Deputy Commissioner of 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
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-
1. The State of Assam, represented by the
Commissioner & Secretary to the Government of Assam,
Finance (Taxation) Department, Dispur, Guwahati -
781006
2. The Commissioner of Taxes, Assam
Kar Bhawan, Dispur, Guwahati - 781006.
3. The Additional Commissioner of Taxes, Assam, Kar
Bhawan, Dispur, Guwahati - 781006.
4. The Joint Commissioner of Taxes,
Assam, Kar Bhawan, Dispur, Guwahati - 781006.
5. The Deputy Commissioner of 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
JUDGMENT & ORDER (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.
2. The present Interlocutory Application has been filed seeking a
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.
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3. The present Interlocutory Application has been filed in connection
with WP(C) No. 6363/2014, which was disposed of by this Court on
05.11.2019.
4. The said writ petition, WP(C) No. 6363/2014 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.
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. Accordingly, the present Interlocutory Application has been filed
challenging the said demand notice dated 30.10.2020.
9. This Court is of the view that since the aforesaid writ petition,
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. With the above observation, the present Interlocutory application
stands closed."
Page No.# 6/7
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:-
"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.
2. The present Interlocutory Application has been filed seeking a
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.
7. It has been stated that after disposal of the said writ petition
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. Accordingly, the present Interlocutory Application has been filed
challenging the said demand notice dated 28.10.2020.
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9. This Court is of the view that since the aforesaid writ petition,
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. With the above observation, the present Interlocutory application
stands closed.
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
