WA 53/2011 BEFORE HON’BLE MR JUSTICE T VAIPHEI HON’BLE MR JUSTICE A C UPADHYAY (T Vaiphei, J) This appeal is directed against the judgment and order dated 30- 9-2008 passed by the learned Single Judge of this Court in W.P.(C) No. 423 of 20 02 upholding the seizure of certain documents pertaining to the business of the petitioner effected under Section 44(3) of the Assam General Sales Tax Act, 1993 ( the Sales Tax Act for short), of the retention of the seized document beyond the period of 120 days prescribed by the Act and of the notice dated 8-11-2001 issued by respondent No. 4 requiring the appellant to appear before him and to p roduce some account books maintained by him. 2. The appellant is the proprietor of the firm under the name and style of M/s. Eastern Drugs and Chemicals, which is registered as dealer under t he Sales Tax Act and the Central Sales Tax Act, and is engaged in the business o f pharmaceutical products with its registered office at Guwahati. According to t he appellant, on 31-7-2001 at about 12.30 P.M., a team of sales tax officials un der respondent 3 visited the business premises of the appellant during his absen ce and issued a notice under Section 44(1) of the Sales Tax Act requiring his em ployees present to produce the books of accounts of the firm for the year 1998-9 9 onwards for verification. Thereafter, according to the appellant, the visiting team made a search of the business premises of the petitioner and effected seiz ure of certain documents which are specifically mentioned in the seizure list da ted 31-7-2001 enclosed as Annexure-B to the writ petition. The case of the respo ndents is that the seizure was made on the ground that the appellant, as the dea ler, has been dealing in some taxable goods which are not covered by his registr ation leading to evasion of taxes and additionally, he could not explain some tr ansactions recorded in loose sheets and exercise books which were detected and s eized on the date in question i.e. 31-7-2001. 3. It would appear that the notice dated 8.11.2001 was subsequently received by the appellant from respondent 4 wherein it was mentioned that the p reliminary verification report in respect of the seized documents had indicated evasion of taxes to the extent of Rs.31,43,454/- by him. He was, therefore, ask ed to appear before respondent 4 on 16-11-2001 and to produce all relevant books of accounts, etc. and explain the facts revealed by the seized documents. In re ply to the notice dated 8-11-2001, the appellant sent the letter dated 3-11-2001 requesting the respondents to release the seized documents so as to enable him to prepare final accounts and also for running his day to day business or, in th e alternative, to furnish him the Xerox copies thereof. Another letter dated 5-1 2-2001 was sent by him to respondent 4 requesting him to adjourn the case to ano ther on the ground of his absence followed by another letter dated 12-12-2001 fo r releasing the seized documents but without any tangible result. This prompted him to file the writ petition for appropriate directions. 4. The contentions of the appellant are that the seizure was not based on requisite satisfaction of the seizing authority as required by the Sales Tax Act ; that if a dealer is found be engaged in business beyond those enumerated in th e registration certificate, there are ample provisions in the Act for amendment of the registration certificate; that the second ground in support of the seizur e, as recorded in the seizure list dated 31-7-2001, is also not tenable as no lo ose sheets had been specifically mentioned in the seizure list; that the seized documents or photo copies thereof are required by him for the purpose of prepari ng his books of accounts without which he is not in a position to produce such a ccounts before the concerned Sales Tax officer; that retention of the seized doc uments can be for a maximum period of 120 days under the proviso to Section 44(3 ) of the Sales Tax Act whereafter the reasons for the retention has to be record ed and approved by the Commissioner of Taxes, but in this case, neither any such reasons have been recorded nor has the approval of the Commissioner been obtain ed; and that the documents seized followed a search operation which, however, wa s not carried out in accordance with the provisions of the Code of Criminal Proc edure. The appellant, therefore, contends that impugned notice cannot be sustain ed in law from any angle and prays for the intervention of the Court. 4a. The State-respondents contested the writ petition and stated in their counter-affidavit, that on 31-7-2001 at about 12-30 P.M., an inspection wa s carried out in the business premises of the appellant under Section 44(1) of t he Sales Tax Act and in the course of the inspection, some incriminating documen ts were found, which, when not reasonably explained by the employees of the appe llant, were seized under Section 44(3) of the Act. It was submitted by the respo ndents that the seizure followed an inspection under Section 44(1) of the Act an d was not pursuant to any search operation so as to require compliance with the provisions of the Code of Criminal Procedure; that the Commissioner by the order dated 11-2-2002 accorded his approval for retention of the seized documents by the respondents beyond 120 days; that in so far as the notice dated 8-11-2001 is concerned, the books of accounts which he was asked to produce before the autho rity were required to be produced by him much before the date of seizure of thos e documents i.e. 31-7-2001 and it was not reasonable on his part to request thei r return for preparation of the books of accounts and that in any case, if such documents were to be returned as insisted upon by him, that would enable him to rectify the anomalies detected by suitably preparing the books of accounts. 5. Though a number of contentions has been urged on behalf of the a ppellant in the memo of appeal, Mr. O.P. Bhati, the learned counsel for the appe llant, has, however, in the course of hearing, confined himself to only one issu e, namely, the question of violation of principles of natural justice by the res pondent authorities in denying the appellant copies of the alleged preliminary v erification report on the seized books of accounts as well as the photo copies o f the seized documents despite his request to that effect in his application dat ed 3-12-2001. According to the learned counsel, the refusal on the part of the r espondents to supply those documents has prevented him from making effective rep ly to the impugned notice dated 8-11-2001, and the impugned notice is liable to be quashed for this reason alone. On the other hand, Mr. R. Dubey, the learned c ounsel for the respondents, contends that there is no provision under the Sales Tax Act for supplying such documents and report and the request made by the appe llant for supply of those documents, in the absence of an enabling statutory pro vision, is ill-conceived: there is no question of violation of principles of nat ural justice when the law does not prescribe observance of the principles of nat ural justice. Countering this submission of the learned counsel for the responde nts, Mr. Bhati submits that the appellant is entitled to supply of copies of the report as well as the seized documents even if the statutory rules laying down the procedure for taking up the proceedings for disposal of the seizure proceedi ngs are silent on the subject or against it, and denial of such documents, which are necessary to prepare his case, will cause prejudice to him and will, ipso f acto, be violative of the principles of natural justice. To buttress his conten tions, he relies on the following decisions of the Apex Court: (i)Indu Bhushan D wivedi v. State of Jharkhand, (2010) 11 SCC 278; (ii) Sahara India (Firm), Luckn ow v. CIT, (2008) 14 SCC 151; (iii) Union of India & ors. V. Mohd. Ramjan Khan, (1991) 1 SCC 588; (iv) K.I. Shephard & ors. V. UOI, (1987) 3 SCC 431 and (v) Cit y Corner v. Personal Assistant to Collector and Addl. District Magistrate, Nello re, (1976) 1 SCC 124. 6. It is the common ground of the counsel for both the parties that there is no express provision under the Sales Tax Act or the rules made thereun der prescribing the supply of a copy of the preliminary verification report in r espect of the seized books of accounts and copies of the seized documents. The q uestion which, therefore, falls for consideration in this appeal is whether deni al of such copies will render the impugned proceeding vitiated even when the sta tutory rules laying down the procedure for holding the proceedings of seizure pr oceedings are silent in this behalf or not? The learned Single Judge is of the v iew that the preliminary verification report as regards the extent of evasion of tax by the appellant is really on the basis of the seized books of accounts as well as the documents seized from him; that if the seized documents have been re tained by the respondents legally and lawfully, as already held by him, the posi tion emanating from such seized documents need not have been furnished to him al ong with the notice dated 8-11-2001; that any such action demanded by the appell ant would be to virtually nullify the seizure and retention of the documents bel onging to him and he would be entitled to the said verification report as well a s the seized documents only when he produces the books of accounts as required t o do by the notice dated 8-11-2001. 7. We have carefully gone through the impugned judgment and the mat erials on record. With respect, we have no reason to interfere with the impugned judgment though on a different ground. In our opinion, the law with respect to observance of rules of natural of natural justice, even in the absence of statut ory provision in this behalf, is no longer res integras. This is so be it a disc iplinary proceeding or otherwise. If any authority is needed, we may refer to th e decision of the Apex Court in the recent case of Indu Bhushan Dwivedi case (su pra). This is what it said: 22. As a general rule, an authority entrusted with the task of deciding lis be tween the parties or empowered to make an order which prejudicially affects the rights of any individual or visits him with civil consequences is duty-bound to act in consonance with the basic rules of natural justice including the one that material sought to be used against the person concerned must be disclosed to hi m and he should be given an opportunity to explain his position. This unwritten right of hearing is fundamental to a just decision, which forms an integral part of the rule of law. This right has its root in the notion of fair procedure. It draws the attention of the authority concerned to the imperative necessity of n ot overlooking the cause which may be shown by the other side before coming to i ts decision. 23. When it comes to taking of disciplinary action against a delinquent employee , the employer is not only required to make the employee aware of the specific i mputations of misconduct but also disclose the material sought to be used agains t him and give him a reasonable opportunity of explaining his position or defend ing himself. If the employer uses some material adverse to the employee about wh ich the latter is not given notice, the final decision get vitiated on the groun d of violation of the rule of audi alteram partem. Even if there are no statutor y rules which regulate holding of disciplinary enquiry against a delinquent empl oyee, the employer is duty-bound to act in consonance with the rules of natural justice ? U.P. Warehousing Corpn. V. Vijay Narayan Vajpayee. 24. However, every violation of the rules of natural justice may not be sufficie nt for invalidating the action taken by the competent authority/employer and the Court will refuse to interfere if it is convinced that such violation has not c aused prejudice to the affected person/employee. 8. The theory of reasonable of hearing and principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vind icate his rights. They are not incantations to be invoked or rites to be perform ed on all and sundry occasions. In State Bank of Patiala v. S.K. Sharma, (1996) 3 SCC 364, the Apex Court also held: Thus, breach of rules of natural justice alone is No. 33.3. & Violation of any and every procedural provision cannot be said to automatically vitiate the enqu iry held or order passed. Except in cases falling under ? notice’, ’no opportuni ty’ and ’no hearing’ categories, the complaint of violation of procedural provis ion should be examined from the point of view of prejudice viz. whether such vio lation has prejudiced the delinquent officer/employee in defending himself prope rly and effectively. (underlined ours) 9. It may now, therefore, be taken to be the law that violation of principles of natural justice cannot, per se, be sufficient to vitiate a proceed ing or enquiry. It is further incumbent upon the petitioner to plead and prove the prejudice caused by the non-compliance with the rules of natural justice. This is abundantly made clear by the Apex Court in SBI v. Bidyut Kumar Mitra, ( 2011) 2 SCC 316: 40. These observations are not relevant in the facts and circumstances of t he present case. The respondent herein is merely trying to make capital out of h is own lapse in not submitting the list of documents in time and also not statin g the relevance of the documents required to be produced. By now the legal posit ion is well-settled and defined. It was incumbent on the respondent to plead and prove the prejudice caused by the non-supply of the documents. The respondent h as failed to place on record any facts or materials to prove what prejudice have been caused to him. In the instant case, the pleadings of the appellant with regard to prejudice are found at paragraph 13 of the writ petition, which is reproduced below: 13. That the petitioner begs to state that the impugned notice dated 08-11-20 00 is equally violative of the principles of natural justice in as much as the c opies of the alleged preliminary verification report of the seized books of acco unt had not been supplied along with the impugned notice to meet out effectively the allegations of evasion of the alleged tax. Further, the actions of initiati ng further proceedings is equally vitiated for non-supply of the Photostat copie s of the seized documents in spite of request to that effect was made by the pet itioner vide his letter dated 03-12-2001. 10. We have gone through the letter dated 3-12-2001 wherein the appe llant stated that the said book of account/documents is being forwarded to you and on 08.11.01 you called upon us to produce our books of account before you fo r your verification. The letter further requested the respondent No. 4 to relea se the seized books of accounts/documents to enable them to prepare heir final a ccounts emphasising the importance of these documents for their audit purpose an d for their regular day-to-day business work in the absence whereof their busine ss would be greatly affected or alternative to issue the photostat copies of the said documents so that they could finalize their accounts. We have referred to the letter dated 3-2-2001 in detail to ascertain what possible prejudice could h ave been caused to the appellant by the non-supply of the said documents since n o facts or materials were pleaded in the memo of appeal to prove prejudice. Howe ver, even after reading and re-reading this letter, we are unable to say that an y prejudice is being caused to the appellant by the non-supply of those document s. All that he stated in that letter is that the documents were essential for th eir audit purpose and for their regular day-to-day business work as otherwise th eir business was being greatly affected: he did not whisper any statement about his inability reply to the impugned notice dated 8-11-2001 issued by respondent 4 due to non-supply of those documents. The appellant has thus failed to place a ny facts record to substantiate his case that any prejudice, not to speak of sub stantial prejudice, is being caused to him for non-supply of those document. Eve n if we assume that rules of natural justice have been violated by the responden t authorities for the non-supply of the copies of the preliminary verification report and the seized documents, on the findings so reached by us, we do not thi nk that any prejudice, ipso facto, could possibly be caused to the appellant. 11. For what has been stated in the foregoing, there is no merit in this writ appeal, which is hereby dismissed but by directing the parties to bear their respective costs.