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S. Dasappa and Company Vs. the Commercial Tax Officer, Mysore Circle, Mysore - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKarnataka High Court
Decided On
Case NumberCriminal Revision Petition No. 468 of 1976
Judge
Reported in[1977]40STC320(Kar)
ActsKarnataka Sales Tax Act, 1957 - Sections 12, 12B, 13(3) and 13(4)
AppellantS. Dasappa and Company
RespondentThe Commercial Tax Officer, Mysore Circle, Mysore
Appellant AdvocateS.D. Chhatre, Adv.
Respondent AdvocateT.J. Chouta, High Court Government Pleader
Excerpt:
.....the industry by itself. had it taken over the management, then it should have run the industry, in which event the provisions contained under sections 32a to 32g of the act would have come into operation. - as observed by the learned judge in that case, the magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. secondly, the demand notice was issued and again they failed to pay the tax......the magistrate and a lorry belonging to the petitioners was attached. against that order passed by learned magistrate, the present revision is filed under sub-section (4) of section 13 of the act. 2. the learned counsel for the petitioners contended that before issuing a distress warrant, the magistrate was required to issue a notice to show cause. these is no requirement for such a prior notice under section 421 of the code of criminal procedure. similarly, there is no provision for a prior notice to show cause under section 13(4) of the act. therefore, the order of the learned magistrate cannot be struck down merely, because he did not issue a notice to show cause. the petitioners have also submitted a return in form 4 and, on the basis of that return, the sales tax due in a sum of rs......
Judgment:
ORDER

Lal, J.

1. This is a criminal revision under section 13(4) of the Karnataka Sales Tax Act, 1957 (hereinafter to be referred to as the 'Act'), and it arises in the following circumstances :

M/s. S. Dasappa and Company is said to be a partnership firm having their place of business at Santepet, Kollegal, District Mysore. It is not disputed that they are assessees under the Act and, accordingly, under sections 12 and 12-B of the Act, they were liable to submit returns for assessment. They were also liable to pay the tax in advance. It is again beyond the pale of controversy that M/s. S. Dasappa and Company, the present petitioners, submitted the annual return under section 12 in form 4, but did not pay any tax in advance. The Commercial Tax Officer issued a notice of demand under form 3-A under rule 18(1)(c) made under the Act. Despite that notice of demand, the tax was not paid. Accordingly, it was considered by the department that the tax was an amount due under the Act from such dealer. Under section 13(3)(b), the Commercial Tax Officer filed an application before the Magistrate that the amount be realised as if it were a fine imposed by him. Thereafter, a distress warrant was issued by the Magistrate and a lorry belonging to the petitioners was attached. Against that order passed by learned Magistrate, the present revision is filed under sub-section (4) of section 13 of the Act.

2. The learned counsel for the petitioners contended that before issuing a distress warrant, the Magistrate was required to issue a notice to show cause. These is no requirement for such a prior notice under section 421 of the Code of Criminal Procedure. Similarly, there is no provision for a prior notice to show cause under section 13(4) of the Act. Therefore, the order of the learned Magistrate cannot be struck down merely, because he did not issue a notice to show cause. The petitioners have also submitted a return in form 4 and, on the basis of that return, the sales tax due in a sum of Rs. 67,200 was demanded. The records of the Commercial Tax Officer is brought for a perusal of the court by the learned State Public Prosecutor and from that record it is evident that the said return was filed by the petitioners and under a calculation made on the basis of their return, a sum of Rs. 67,200 was payable as sales tax. In fact, the petitioners have themselves mentioned that amount as payable by them for sales tax. Since under sections 12 and 12-B of the Act, the tax was payable in advance and the same was not paid, the demand notice under form 3-A was issued. In these circumstances, even principles of natural justice never required that a prior notice to show cause should have been given before sending a warrant for attachment and sale of any movable property belonging to the assessee.

3. It is next contended by the learned counsel that there was no assessment order and the learned Magistrate was required to see the assessment order before he could proceed to issue the warrant for attachment and sale of any movable property. For this the learned counsel relied on a decision in Ganesh Narayana Hedge v. Commercial Tax Officer, Sirsi [[1976] 37 S.T.C. 567; (1976) 1 Kar. L.J. 233]. But the facts of that case were different and that ruling would have no effect in the present case. As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. That apart, no material was produced before the Magistrate even stating as to whether the petitioners were the assessees and as to whether any tax could at all be realised from them. The Magistrate did not apply his mind and issued the distress warrant. In these circumstances, it was held that the order of the Magistrate was illegal and could not be sustained. The position in the instant case is entirely different. The file of the Commercial Tax Officer does indicate that the petitioners themselves filed a return and calculated the amount of tax payable by them. The very same tax was demanded from the petitioners under a notice of demand. Firstly, they ought to have paid the tax in advance which they never did. Secondly, the demand notice was issued and again they failed to pay the tax. In view of sections 12 and 12-B of the Act, decidedly that was the amount due under the Act from such a dealer. As such, upon the plain language of section 13(3), the amount due was recoverable as if it were a fine imposed by a Magistrate. Thus, the said ruling relied upon by the learned counsel will not be of any help to the petitioners. An assessment order was not required, as under section 12-B, the tax was an amount due under the Act from such dealer. In fact, that was the amount pointed out by the dealer himself as payable by him. Therefore, the order of the learned Magistrate cannot be questioned on this ground that either he did not apply his mind or that he did not see the required documents before issuing the distress warrant.

4. The learned counsel then pointed out that the warrant issued was vague inasmuch as it did not specify the particular lorry which was to be attached. That was not the requirement of law. Under section 421, the warrant had to specify for the attachment and sale of any movable property belonging to the assessee. It could not be contemplated that the lorry or any other movable property would at all be available for attachment at the time the order was to be served upon the assessee. Therefore, no exception can be taken to the form of the warrant issued. It was rather the correct warrant and provided for all that was required under law to be provided for.

5. An ingenious argument was raised by the learned counsel for the petitioners with reference to section 421 of the Code of Criminal Procedure. It was stated that the learned Magistrate could not impose a fine exceeding Rs. 5,000 and, therefore, the issue of distress warrant for recovery of Rs. 67,200 by attachment and sale of property was an act beyond the jurisdiction of the Magistrate. For that, the learned counsel relied on a Division Bench case of this Court in Mohanlal Premchand v. Commercial Tax Officer [[1971] 28 S.T.C. 492; (1971) 1 Mys. L.J. 72]. But, that case related to the unamended section 13(3)(b). The language 'notwithstanding anything contained in the Code of Criminal Procedure, 1898' was not there before 1972. That is why, the Division Bench of this Court came to the conclusion that the Magistrate issuing the warrant of distress could not ask for recovery of an amount exceeding his own power to levy fine. The above-noted language used in sub-section (3)(b) rather makes the position clear. The limit imposed by the legislature on the levy of fine will no longer hold goods and the Magistrate would realise the amount 'as if it were a fine imposed by him' notwithstanding that the amount to be recovered is much more than the fine which could be imposed by him.

6. In this view of the matter, I do not find any defect in the order made by the learned Magistrate. As such, no revision is sustainable against that order. The petition is, therefore, dismissed.

7. Petition dismissed.


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