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K. Burman Vs. the Commercial Tax Officer, Calcutta and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKarnataka High Court
Decided On
Case NumberWrit Petition No. 1873 of 1965
Judge
Reported in(1971)2MysLJ379; [1971]28STC637(Kar)
ActsBengal Finance (Sales Tax) Act, 1941 - Sections 11(2); ;Bengal Public Demands Recovery Act, 1913; Revenue Recovery Act - Sections 7
AppellantK. Burman
RespondentThe Commercial Tax Officer, Calcutta and ors.
Appellant AdvocateS.K. Venkataranga Iyengar, Adv.
Respondent AdvocateS.G. Dodda Kale Gowda, High Court Government Pleader and ;D.R. Venkatesha Iyer, Adv.
Excerpt:
.....aside the punishment. further, the gravity of the charge cannot be ignored, unless the workman establishes that the delay has vitally prejudiced his case. just because there is delay, the punishment cannot be altered when the charge of fraud is proved. award was set aside. - the second respondent in his turn issued a certificate under section 3 of the revenue recovery act, central act 1 of 1890, to the third respondent, the deputy commissioner of bangalore urban district, as the petitioner was reported to have a place of business as well as properties within the district of bangalore. 12. once the position is clearly understood that way, no further argument or contention is possible to get rid of or circumvent the operation of the said statutory provisions......the district of bangalore. when the deputy commissioner took steps for recovery under the mysore land revenue code then in force (since replaced by the mysore land revenue act of 1964) through his subordinate, the special tahsildar for recovery, the 5th respondent, the petitioner raised various objections. the deputy commissioner overruled them and appeals by the petitioner presented to the divisional commissioner, the 6th respondent, and the mysore revenue appellate tribunal, the 7th respondent, were not successful. the petitioner thereupon filed writ petition no. 315 of 1963 which was dismissed on the 10th september, 1965, for the reason that the authorities of west bengal had not been impleaded as parties. thereafter the petitioner filed this writ petition on the 20th of september,.....
Judgment:
ORDER

Narayana Pai, C.J.

1. The first respondent, one of the Commercial Tax Officer of Calcutta, West Bengal, made an order of assessment against the petitioner under section 11(2) of the Bengal Finance (Sales Tax) Act, 1941, on the 24th of September, 1967, under which he determined the taxable turnover of the petitioner for the two years from 1st January, 1955, to 31st December, 1956, at Rs. 4,00,000 and tax payable thereon at Rs. 18,750. He also imposed a penalty under section 11(2) of the Act for non-registration on the petitioner in the sum of Rs. 2,500. Pursuant thereto, he issued a notice of demand to the petitioner in form No. VII prescribed under the said Bengal Act. As the petitioner did not pay the demand, the first respondent issued a certificate for collection thereof under the Bengal Public Demands Recovery Act, 1913, to the second respondent, the Collector of 24 Parganas, West Bengal. The second respondent in his turn issued a certificate under section 3 of the Revenue Recovery Act, Central Act 1 of 1890, to the third respondent, the Deputy Commissioner of Bangalore Urban District, as the petitioner was reported to have a place of business as well as properties within the district of Bangalore. When the Deputy Commissioner took steps for recovery under the Mysore Land Revenue Code then in force (since replaced by the Mysore Land Revenue Act of 1964) through his subordinate, the Special Tahsildar for Recovery, the 5th respondent, the petitioner raised various objections. The Deputy Commissioner overruled them and appeals by the petitioner presented to the Divisional Commissioner, the 6th respondent, and the Mysore Revenue Appellate Tribunal, the 7th respondent, were not successful. The petitioner thereupon filed Writ Petition No. 315 of 1963 which was dismissed on the 10th September, 1965, for the reason that the authorities of West Bengal had not been impleaded as parties. Thereafter the petitioner filed this writ petition on the 20th of September, 1965, in which he prays for the quashing of not only the certificate for recovery issued by the Collector of 24 Parganas and the orders in respect thereof of the Deputy Commissioner, Divisional Commissioner and Mysore Revenue Appellate Tribunal, but also of the original order of assessment made by the first respondent.

2. Although the matter has been argued at length and various aspects of the controversy discussed in detail the principal matters for consideration in this writ petition are :

(1) Whether the certificate issued by the Collector of 24 Parganas is a valid and enforceable certificate under the law, and

(2) Whether the petitioner can, in these recovery proceedings, question the validity or correctness of the order of assessment itself.

3. The disposal of the first question depends upon a consideration of the relevant legal provisions governing the issue and enforcement of certificates of the nature impugned in this case.

4. As we have already stated, the demand for the collection of which the impugned certificate was issued was a demand made under or pursuant to an order of assessment made under the Bengal Finance (Sales Tax) Act of 1941. Sub-section (4) of section 11 of the said Act provides that :

'Any amount of tax or penalty which remains unpaid after the date specified in the said notice shall be recoverable as an arrear of land revenue as if it were payable to the Collector.'

5. It is a public demand within the meaning of the Bengal Public Demands Recovery Act of 1913 which is in force in the State of West Bengal and which provides for recovery of public demands as if they were arrears of land revenue and sets out the details of procedure therefor.

6. Under the Revenue Recovery Act, Central Act 1 of 1890, which extends to the whole of India except the State of Jammu and Kashmir from 1950 onwards, provision has been made for recovery of certain public demands. Section 2 thereof defines a Collector as the Chief Officer in charge of the land revenue administration of a district and defaulter as a person from whom an arrear of land revenue or a sum recoverable as an arrear of land revenue is due. Sections 3 and 5 thereof read as follows :

'3. (1) Where an arrear of land revenue, or a sum recoverable as an arrear of land revenue is payable to a Collector by a defaulter being or having property in a district other than that in which the arrear accrued or the sum is payable, the Collector may send to the Collector of that other district a certificate in the form as nearly as may be of the schedule, stating

(a) the name of the defaulter and such other particulars as may be necessary for his identification, and

(b) the amount payable by him and the account to which it is due.

(2) The certificate shall be signed by the Collector making it, or by any officer to whom such Collector may, by order in writing, delegate this duty and, save as otherwise provided by this Act, shall be conclusive proof of the matters therein stated.

(3) The Collector of the other district shall, on receiving the certificate, proceed to recover the amount stated therein as if it were an arrear of land revenue which had accrued in his own district.'

'5. Where any sum is recoverable as an arrear of land revenue by any public officer other than a Collector or by any local authority, the Collector of the district in which the office of that officer or authority is situate shall, on the request of the officer or authority, proceed to recover the sum as if it were an arrear of land revenue which has accrued in his own district, and may send a certificate of the amount to be recovered to the Collector of another district under the foregoing provisions of this Act, as if the sum were payable to himself.'

7. Now it is clear from section 5 that when a certificate is issued in respect of any sum which is declared as recoverable as an arrear of land revenue [the sales tax due in this case is one such by virtue of sub-section (4) of section 11 of the Bengal Finance (Sales Tax) Act, 1941], the Collector is required to proceed to recover the same as if it were an arrear of land revenue accruing in his own district and he is also empowered to send the certificate to the Collector of another district for enforcement pursuant to any of the previous provisions of the statute one of which is section 3.

8. There can be no doubt therefore that the procedure adopted by the Commercial Tax Officer of Calcutta and later by the Collector of 24 Parganas is quite in accordance with these statutory provisions. The argument that the only section under which action could be taken in cases of this nature is section 5 of the Revenue Recovery Act and the citation of section 3 thereof in the impugned certificate exhibit E-1 is a vitiating circumstance cannot be accepted. Section 3 is the principal section for recovery of any amount due to the Collector within the meaning of the section. Section 5 by its very language imports the provisions of section 3 by equating a public demand in respect of which a certificate has been issued with land revenue due to the Collector for purposes of recovery. The further argument that the expression 'district' or 'another district' means or can mean only a district of the same State as the one in which the demand originally arose cannot also be accepted because the Revenue Recovery Act applies to the entire Indian Union and the definition of Collector leaves no room for doubt that reference throughout is to a territory called district demarcated for purposes of revenue administration placed in charge of a district officer called Collector.

9. By providing that the Collector who receives the certificate in the first instance or the Collector to whom it is subsequently sent should proceed to recover the demand as if it were an arrear of land revenue due to him arising in his own district, the statute invokes the machinery for recovery of land revenue provided in the State in which the district of the said Collector is situated.

10. When, therefore, the certificate was received from the Collector of 24 Parganas by the Deputy Commissioner of Bangalore Urban District, the latter became entitled and obliged to make the recovery pursuant to the provisions made for recovery of land revenue in Chapter XI of the Mysore Land Revenue Code dealing with the realisation of land revenue and other revenue demands.

11. It has been argued that the provisions of the said Chapter can be invoked pursuant to only section 193 of the Code contained in the said Chapter, or, in other words, that the provisions of that Chapter can be reached only through section 193. We do not think so. Section 193 of the Mysore Land Revenue Code makes the machinery of Chapter XI available for recovery of sums declared by the Land Revenue Code or other law for the time being in force to be leviable as assessment or as land revenue demand or arrear of land revenue within the State of Mysore. So far as arrears of land revenue or other public demands recoverable as land revenue accruing or arising in other States are concerned, the law by which the machinery under Chapter XI of the Mysore Land Revenue Code is invoked is the Revenue Recovery Act in the manner already explained by us above.

12. Once the position is clearly understood that way, no further argument or contention is possible to get rid of or circumvent the operation of the said statutory provisions.

13. We are, therefore, of the opinion that there is no invalidity or legal infirmity attaching to the certificate exhibit I impugned in this petition.

14. To the second question raised on behalf of the petitioner, the clear answer is contained in sub-section (3) of section 3 of the Revenue Recovery Act, namely, that the Collector of the other district on receiving the certificate issued to him shall proceed to recover the amount stated therein as if it were an arrear of land revenue which had accrued in his own district. The law itself declares that the amount stated in the certificate issued to him is to be regarded as an arrear of land revenue which had accrued in the receiving Collector's district and directs the said Collector to proceed to recover the same accordingly. The Collector therefore is prohibited by law from dealing with that matter in any other way.

15. The said interpretation of the section is further reinforced by the provisions of the following section 4 which provides that if the person against whom proceedings are taken denies his liability as declared by or stated in the certificate, he may pay the same under protest and institute a suit for repayment thereof in such court and according to such law as is indicated in the same section.

16. It was argued that there was something in section 7 of the Revenue Recovery Act which extends some protection to persons in the position of the petitioner. The section however extends protection not to the person proceeded against but the revenue or public demand sought to be recovered, because it states that nothing in the foregoing sections shall be construed to impair any security provided by, or affect the provisions of, any other enactment for the time being in force for the recovery of land revenue or of sums recoverable as arrears of land revenue; the only protection which clause (b) gives to persons is protection against arrest for recovery of any tax payable to the Corporation Commissioner, Committee or other local authority. 17. The only way in which Mr. Venkataranga Iyengar, learned counsel for the petitioner, tried to steer clear of this clear legal position is by contending that the assessment order itself is a nullity having been made by an officer who totally lacked the jurisdiction to make such an order. The two reasons in support of the case of total lack of jurisdiction are -

(1) that the petitioner had not been given a reasonable opportunity to show cause against the assessment made under section 11 of the Bengal Finance (Sales Tax) Act, and

(2) that the power under the said section 11 can be exercised only by the Commissioner of Commercial Taxes and not by the Commercial Tax Officer.

17. We find from section 15 of the Bengal Finance (Sales Tax) Act, 1941, that the Commissioner can, subject to such restrictions and conditions as may be prescribed, delegate by an order in writing any of his powers under the Act except those under sub-section (2) of section 22 to any person appointed under section 3 to assist him; one of the persons so appointed is a Commercial Tax Officer. The limitation prescribed by rule 71 of the Bengal Sales Tax Rules so far as section 11 is that it shall not be delegated to any officer below the rank of a Commercial Tax Officer. Although the original order of delegation is not produced we think that the first respondent is entitled to presume regularity in respect of an undoubtedly official act of his.

18. The further reason in respect of the case of lack of jurisdiction is that the Commercial Tax Officer could have jurisdiction only if the petitioner had a place of business in Calcutta or is a dealer operating in Calcutta. That is a question of fact. Although it is a jurisdictional fact, that is to say, a fact on the existence of which alone the jurisdiction of the Commercial Tax Officer rests, the jurisdiction to decide whether such a fact exists or not vests in the Commercial Tax Officer himself because there is nothing in the Bengal Finance (Sales Tax) Act indicating that the jurisdiction to decide the same vests in some other authority.

19. The petitioner on receipt of the notice of demand did not take any steps available to him under the Bengal Act to get the allegedly erroneous order of the Commercial Tax Officer rectified. He merely caused a lawyer's notice to be issued to the first respondent questioning his jurisdiction. We do not think that mere issue of a notice is sufficient to enable the petitioner to totally repudiate the binding nature of the order against him.

20. The argument that he has had no previous notice is based upon the entries in the order sheet of the Commercial Tax Officer, the first respondent, a certified copy of which has been produced along with the writ petition. The assessment order itself contains statements to the effect that every attempt was made to serve the petitioner and that the Commercial Tax Officer got the impression that the petitioner was trying to evade service.

21. Assuming for purposes of argument that the Commercial Tax Officer's observations were factually incorrect, the petitioner cannot get rid of the fact that he was in fact served with a notice of demand before 16th December, 1957, on which date his lawyer addressed a notice to the Commercial Tax Officer, Calcutta, the first respondent. He had no excuse therefore for not taking steps available to him under the Bengal Act to get rid of the order if he thought that it was wrong or lacked jurisdiction.

22. Not having done so, he cannot now ask this court under article 226 of the Constitution to quash the said order.

23. The writ petition is, therefore, dismissed. The petitioner will pay the costs of the first respondent, the Commercial Tax Officer, Calcutta. Advocate's fee Rs. 150.

24. Petition dismissed.


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