Karnataka High Court
M. Visweswaraiah vs The State Of Karnataka And Ors. on 9 March, 1983
Equivalent citations: ILR1983KAR707, [1983]53STC416(KAR)
ORDER Puttaswamy, J.
1. On 16th August, 1978, the Additional Assistant Commercial Tax Officer (Intelligence), Davanagere - respondent No. 2 - (hereinafter referred to as the ACTO), searched the business premises of the petitioner, who is a registered dealer under the provisions of the Karnataka Sales Tax Act, 1957 (hereinafter referred to as the Act), and seized certain account books and documents and issued an order on the same day (exhibit A) to that effect under section 28(3) of the Act. On 21st August, 1978, the same officer has collected a sum of Rs. 10,464 from the petitioner as taxes due for the assessment years 1976-77 and 1977-78 and a sum of Rs. 5,000 as composition fee under section 31 of the Act. In this petition under article 226 of the Constitution, the petitioner has challenged the order made by the ACTO on 16th August, 1978 (exhibit A).
2. The petitioner claims that the ACTO was not authorised by law to search his premises and seize the documents, levy taxes, collect composition fee. Elaborating this, the petitioner contends that an "Additional" Assistant Commercial Tax Officer is not an Assistant Commercial Tax Officer authorised by the Act.
3. At the hearing, the petitioner has also urged that under section 3B(3)(a) of the Act, the Commissioner had not authorised the ACTO to search and seize his business premises for which reason his actions were unauthorised.
4. Sri Abbigeri Kalleshappa, learned counsel for the petitioner, contends that an "Additional" Assistant Commercial Tax Officer is not an Assistant Commercial Tax Officer and, therefore, the actions of the ACTO were unauthorised and illegal. In support of his contention Sri Kalleshappa strongly relies on a ruling of the Andhra Pradesh High Court in Additional Commissioner of Income-tax, A.P. v. Income-tax Appellate Tribunal [1975] 100 ITR 483.
5. Sri S. V. Narasimhan, learned High Court Government Pleader, appearing for the revenue, contends that an Additional Assistant Commercial Tax Officer is also an Assistant Commercial Tax Officer and the former can exercise all the powers of the latter under the Act, if authorised by the Commissioner under section 3B(3)(a) of the Act, as in the present case. In support of his contention Sri Narasimhan strongly relies on the Division Bench rulings of this Court in Haji M. P. Mohammed v. Sheik Ahmad (1964) 2 Mys LJ 458 and Ganesh Rao v. Sarphina D'Souza Bai (1975) 2 Kar LJ 352.
6. The word "addition" derived from the word "add" means adding something to an existing thing. "Additional" is an adjective of the term "addition".
7. As a rule, additional officers are appointed to attend to extra or additional work of an office that cannot be performed by the incumbent of that office. In law the position of an additional officer is that of the very officer that holds the office. In this view, an Additional Assistant Commercial Tax Officer will also be an Assistant Commercial Tax Officer of the area or class of dealers, if authorised by the Commissioner under section 3B(3)(a) of the Act.
8. The power to appoint an Assistant Commercial Tax Officer comprehends in itself the power to appoint the Additional Assistant Commercial Tax Officer also.
9. On any legal principles, it is difficult to hold that an Additional Assistant Commercial Tax Officer is not an Assistant Commercial Tax Officer.
10. In Haji M. P. Mohammed's (1964) 2 Mys LJ 458 and Ganesh Rao's cases (1975) 2 Kar LJ 352. This Court was examining a similar situation of an Additional District Judge exercising the powers of a District Judge on whom only power to decide cases had been conferred by the Rent Control Act. On such an examination, this Court found that an Additional District Judge was also a District Judge of the area and the power exercised by the former was legal and valid. On the principles enunciated in Haji M. P. Mahammed's (1964) 2 Mys LJ 458 and Ganesh Rao's cases (1975) 2 Kar LJ 352, which governs the question that arises in the case, it is difficult to uphold the contention of Sri Kalleshappa.
11. Sri Kalleshappa relied on section 2(16) of the Income-tax Act, which defines the term "Commissioner" as including an "Additional Commissioner" to contend that an Additional Assistant Commercial Tax Officer cannot be an Assistant Commercial Tax Officer.
12. In my view, an Additional Commissioner has been included in the term "Commissioner" ex abundanti cautela to repel any possible and plausible contention in that behalf and not for the reason that there is merit in that legal contention. In any view, the provisions of the Act cannot be interpreted with reference to the provisions found in the Income-tax Act.
13. In Additional Commissioner of Income-tax, A.P.'s case [1975] 100 ITR 483, the Andhra Pradesh High Court has interpreted the provisions of the Act without examining or expressing any opinion on the correctness of the contention urged before me. In this view, the ratio in Additional Commissioner of Income-tax, A.P.'s case [1975] 100 ITR 483 does not really bear on the point.
14. At the hearing Sri Narasimhan has placed before me the notification dated 1st February. 1977, issued by the Commissioner of Commercial Taxes conferring power on the Assistant Commercial Tax Officer (Intelligence), Davanagere, to exercise the powers over the entire District of Chitradurga.
15. In view of the aforesaid notification and the construction placed by me earlier, the ACTO was competent to search the premises and seize the document from the petitioner on 16th August, 1978.
16. On the above discussion, it follows that the order made by the ACTO on 16th August, 1978, does not suffer from any error of jurisdiction or manifest illegality justifying this Court's interference under article 226 of the Constitution.
17. As the only contention urged for the petitioner fails, this writ petition is liable to be dismissed. I, therefore, dismiss this writ petition and discharge the rule issued in the case. But, in the circumstances of the case, I direct the parties to bear the own costs.