' MUHAMMAD ATHER SAEED J.---These Civil Petitions for Leave to Appeal have been filed against the common judgment of the learned Lahore High Court, Lahore, ated 11-11-2010 in Writ Petitions Nos.8453 and 12191 of 2003 and 38 of 2004 whereby learned High Court had disposed of the writ petitions with direction that the parties may contest their grievance before the Adjudicating Officer.
2. Brief facts of these cases are that the respondent had conducted a raid on the premises of the petitioner and had carried away the manual as well as computer record and then issued show cause notice for recovery of alleged evaded sales tax. The learned High Court held that the very fact that huge demand has been raised on the basis of the seized record shows that the apprehension of the respondent While raiding the premises cannot be said to be without any reasonable belief and apprehension. The learned High Court has also held that superior Courts are not the forum to adjudicate upon the questions-of facts by making thorough investigation and the parties may contest their grievance before Adjudicating Officer.
3. We have heard Mian Abdul Ghaffar, learned Advocate Supreme Court counsel for the petitioner and Mian Yousaf Omer, learned Advocate Supreme Court for respondent.
4. The learned Advocate Supreme Court for the petitioner argued that the raid should be made under section 40 of the Sales Tax Act, 1990 after obtaining warrants from the Magistrate and if it is made under section 40-A of the Sales Tax Act then the reasons should have been given as to why the respondent apprehends that record will be removed. He in this connection relied upon the judgments of this Court in the cases of (1)Collector of Sales Tax and Central Excise (Enforcement) and another v. Messrs Mega Tech (Pvt.) Ltd. Reported in 2005 PTD 1933, (2) Collector of Sales Tax etc. v. Messrs Food Consults (Pvt.) Ltd. And Messrs Diplex Beauty Clinic reported in 2007 PTD 2356 and (3) Federation of Pakistan through ministry of Finance Islamabad v. Master Enterprises (Pvt.)
Ltd. And others reported in 2003 PTD 1034, and argued that in these cases, this Court had held that the raid under section 40-A of the Sales Tax Act can only be conducted after giving cogent reasons for the formation of plea by the respondent that the relevant record may be removed if they waited for warrants from the Magistrate. He drew' our attention to notice under sections 38 and 40-A of the Sales Tax Act and pointed out that no such reasons have been mentioned in this notice.
5. After perusing the judgments of this Court, we have seen that this Court has held that without mentioning reasons and plea of emergency, for entry in the premises, the raid by the concerned authorities without taking permission from the Magistrate is illegal. In view of the above judgments of this Court, we are inclined to grant leave to appeal, inter alia, to consider the following points:--
(1) Whether the raids conducted under sections 38 and 40-A of the Sales Tax Act were within the parameters specified by this Court in the above judgments; and
(2) Whether the documents seized during the illegal raid can be used against the petitioner in any manner to his disadvantage.