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S. Kavali and Sons Vs. Commercial Tax Officer, I Circle, Hubli and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKarnataka High Court
Decided On
Case NumberCivil Revision Petition No. 459 of 1964
Judge
Reported in(1965)2MysLJ712; [1966]18STC94(Kar)
ActsCentral Sales Tax, Act, 1956 - Sections 8(2), 8(2A), 9(1), 9(3) and 13
AppellantS. Kavali and Sons
RespondentCommercial Tax Officer, I Circle, Hubli and anr.
Appellant AdvocateK. Srinivasan, Adv.
Respondent AdvocateBheemasenachari Ashrit, High Court Government Pleader
Excerpt:
.....being provided. - when proceedings are taken under section 13(3)(b) of the act, whether a magistrate is functioning as a civil court or criminal court, section 32 of the act clearly stated that the validity of the assessment in such cases cannot be questioned......the central sales tax act, 1956. they have been assessed to a tax of rs. 8,926.28 np. under the central sales tax act for the period from 12th november, 1958, to 31st october, 1959. the respondent filed an application under section 13(3)(b) of the mysore sales tax act, 1957, which will be hereinafter referred to as the act, to recover the amount due from the petitioner. the learned magistrate overruled the objections filed on behalf of the petitioner and held that he had no jurisdiction to go into the question of the validity of the assessment. he therefore directed the petitioner to pay the tax due by 30th april, 1964, failing which warrant would be issued to recover the tax amount from the petitioner. this revision petition is filed questioning the correctness of the said decision......
Judgment:
ORDER

1. The petitioner-firm is a registered dealer under the Central Sales Tax Act, 1956. They have been assessed to a tax of Rs. 8,926.28 nP. under the Central Sales Tax Act for the period from 12th November, 1958, to 31st October, 1959. The respondent filed an application under section 13(3)(b) of the Mysore Sales Tax Act, 1957, which will be hereinafter referred to as the Act, to recover the amount due from the petitioner. The learned Magistrate overruled the objections filed on behalf of the petitioner and held that he had no jurisdiction to go into the question of the validity of the assessment. He therefore directed the petitioner to pay the tax due by 30th April, 1964, failing which warrant would be issued to recover the tax amount from the petitioner. This revision petition is filed questioning the correctness of the said decision.

2. Sri K. Srinivasan, learned counsel on behalf of the petitioner, has contended that section 32 of the Act is not applicable to proceedings taken under the Central Sales Tax Act. He argues that section 9(3) of the Central Sales Tax Act does not attract the application of section 32 of the Mysore Act. His submission is that the validity of the assessment made under the Central Sales Tax Act can be gone into by the court when recovery proceedings are initiated under section 13(3)(b) of the Act.

3. It may be mentioned that this ground has not been raised in the revision petition. Section 9(3) of the Central Act clothes the authorities empowered to assess, collect and enforce payment of any tax under the general sales tax law of the appropriate State, to assess, collect and enforce payment of any tax payable by a dealer under the Central Act in the same manner as the tax on the sale or purchase of goods under the general sales tax law of the State is assessed, paid and collected; and for this purpose they may exercise all or any of the powers they have under the general sales tax law of the State.

4. This contention has not been raised in the revision petition, possibly, in view of the decision of a Division Bench of this Court in Adinarayana Setty v. Commercial Tax Officer, Kolar ([1963] 14 S.T.C. 587). In that case, a petition under section 13(3)(b) of the Act had been fled for recovery of dues under the Central Sales Tax Act. The learned Magistrate, as in this case, overruled the objection of the respondent and issued warrants for the recovery of the said arrears. The revision petition was filed against the said order of the learned Magistrate, in this Court. Their Lordships dismissed the petition and held that the authorities for the time being empowered to assess, collect and enforce payment of any tax under the general sales tax law of the appropriate State, are required by sub-section (3) on behalf of the Government of India and subject to any rules made under the Central Act, to assessee, collect and enforce payment of any tax, including any penalty, payable by a dealer under the Central Act. This assessment, collection and enforcement of payment of the tax under the Central Act is required to be done in the same manner as the tax under the general sales tax law of the State is assessed, paid and collected. What those authorities are required to assess, collect and enforce payment of, is the tax under the Central Act (including penalty). For the purpose of so assessing, collecting and enforcing the payment of the tax due under the Central Act, the authorities may exercise all or any of the powers which they have under the general sales tax law of the State. I am therefore of opinion that there is no merit in the said contention urged on behalf of the petitioner.

5. Sri Srinivasan has next contended that the transaction in question is an inter-State transaction outside the purview of the Act, that under the provisions of section 8(2A) of the Central Act, if the sale or purchase of goods is exempt from tax under the general sales tax law of the appropriate State, the tax under the Central Act shall be nil. The petitioner purchased cotton-seeds, oil cakes and gunny bags from dealers in Mysore State before effecting the sales in the course of inter-State trade or commerce. That under the provisions of the Mysore Act, 1957, it is only the first sales of cotton-seeds, oil cakes and gunny bags that are taxed and hence there can be no tax on the sales of those commodities under the Central Sales Tax Act. He therefore contends that the authorities had no jurisdiction to levy the tax in question. He has cited before me the decision of the Supreme Court in The State of Mysore v. Yaddalam Lakshminarasimhiah Setty & Sons. ([1965] 16 S.T.C. 231). Their Lordships in the said case have held that the expression 'levied' in section 9(1) of the Central Act referred to the expression 'levied' in section 5(3)(a) of the State act and, therefore, the Central Act had not made a departure in the manner of levy of tax. Their Lordships upheld the conclusion of the High Court that by virtue of section 8(2) of the Central Act, any exemption given by a State Act or the point determined by it at which a sale was to be taxed applied also to assessments under the Central Act.

6. But the question for consideration in this revision petition is whether the petitioner can ask the Court, when proceedings are taken under section 13(3)(b) of the Act, to go into the question of the validity of the assessment to any tax made on him. In Kamala Mills Ltd. v. State of Bombay ([1965] 16 S.T.C. 613), it was contended on behalf of the petitioner in the Supreme Court that the order of assessment made was without jurisdiction. The argument was that the State Legislature had no competence to levy tax in respect of outside sale and the impugned assessment contravened the provisions of Article 286 and as such the assessment was without jurisdiction and void. At page 624, the Supreme Court has observed as follows :

'It would thus be seen that the appropriate authorities have been given power in express terms to examine the returns submitted by the dealers and to deal with the question as to whether the transactions entered into by the dealers are liable to be assessed under the relevant provisions of the Act or not. In our opinion, it is plain that the very object of constituting appropriate authorities under the Act is to create a hierarchy of special tribunals to deal with the problem of levying assessment of sales tax as contemplated by the Act. If we examine the relevant provisions which confer jurisdiction on the appropriate authorities to levy assessment on the dealers in respect of transactions to which the charging section applies, it is impossible to escape the conclusion that all questions pertaining to the liability of the dealers to pay assessment in respect of their transactions are expressly left to be decided by the appropriate authorities under the Act as matters falling within their jurisdiction. Whether or not a return is correct; whether or not transactions which are not mentioned in the return, but about which the appropriate authority has knowledge, fall within the mischief of the charging section; what is the true and real extent of the transactions which are assessable; all these and other allied questions have to be determined by the appropriate authorities themselves.'

7. Their Lordships rejected the contention of the petitioner in that case and held that if the appropriate authority, while exercising its jurisdiction and power under the relevant provisions of the Act, holds erroneously that a transaction, which is an outside sale, is not an outside sale and proceeds to levy sales tax on it, it cannot be said that the decision of the appropriate authority is without jurisdiction.

8. The petitioner should have urged thus contention before the various authorities provided under the Act itself. The Act had provided rights of appeal and revision to the appropriate authorities. There is a further right of appeal to the Appellate Tribunal constituted under the Act and the party can also come up in revision to the High Court against the order of the Tribunal in appropriate cases. The learned counsel for the petitioner has conceded before me that the petitioner has not taken up the assessment order in appeal or revision to any of the authorities as provided by the Act.

9. In a decision of the Division Bench of this Court, in The State v. G. L. Udyawar ([1963] 14 S.T.C. 628), Sadasivayya, J., speaking for the Bench, has observed as follows at page 632 :

'It would be manifest from these provisions that a party aggrieved by an order of assessment has full opportunity under the Act to challenge the validity and the extent of the tax assessed against him and the tax which he shall be finally liable to pay would be the tax as determined. It is then that section 13 of the Act is to be invoked for recovery of the tax. Sub-section (1) requires an assessee to pay the tax under the Act in such manner and in such instalments as may be specified in the notice of assessment. The consequences of default in making payments according to the notice of demand are provided for in sub-section (2). Clauses (a) and (b) of sub-section (3) provided for alternative modes of recovery. Thus a Magistrate entertaining an application for recovery of the amount of tax has nothing more to do than to take steps to recover the same in the manner in which he would recover any amount of fine imposed by him. All questions relating to the validity or extent of the claims, if any would have been determined by then under the other provisions of the Act and the proceeding before the Magistrate would be nothing more than a simple and limited proceeding for recovery. Such proceeding would be ministerial and executive in character.'

10. His Lordship the Chief Justice in Amarappa v. The Commercial Tax Officer, Raichur (Criminal Revision Petitions Nos. 434 and 435 of 1964), considering the question as to what are the powers of the Court when proceedings are taken under section 13(3)(b) of the Act, has observed as follows :-

'The exact matter before the criminal court related to the recovery of the sales tax levied by the appropriate authority. The criminal court, in my opinion, is not competent to go behind that order and question the legality or correctness of the levy. If the petitioner was really aggrieved by the order of levy, he was entitled to take appropriate steps under the relevant enactment or by invoking the jurisdiction of High Court under Article 226 of the Constitution to get it reversed, but he cannot call upon the Magistrate to investigate into the correctness or legality of the levy when he is called upon to execute the order and recover the amount levied by the Sales Tax Officer under section 13 of the Act.'

11. I am therefore of opinion that there is no merit in the second contention urged by Sri Srinivasan on behalf of the petitioner.

12. Sri Srinivasan has argued, relying on the observations made by this Court in The State v. G. L. Udyawar ([1963] 14 S.T.C. 628), that the proceedings before the Magistrate under section 13(3)(b) are not criminal proceedings, but may be civil proceedings, that section 32 of the Act is not attracted and as such he is entitled to question the validity of the assessment in the instant case. This again is a point not taken up by him in the grounds of his revision petition. When proceedings are taken under section 13(3)(b) of the Act, whether a Magistrate is functioning as a civil court or criminal court, section 32 of the Act clearly stated that the validity of the assessment in such cases cannot be questioned. It is no doubt a fact that the power of the Magistrate to take proceedings for the recovery of the tax assessed accrues to him by virtue of section 13(3)(b) of the Act and not under any provision of the Code of Criminal Procedure, but the very Act, by section 32, precludes the Magistrate from going into the question of validity of the assessment, as the Act has expressly provided various other remedies to the assessee by way of appeal, revision, etc. Even assuming for the sake of argument that the contention of the petitioner is correct that the Magistrate functions as a civil court and not as a criminal court and section 32 of the Act is not attracted, then, it may be mentioned, section 35 of the Act would act as a bar and prevent the court from going into the question of validity of the assessment. Section 35 states :

'No suit or other proceeding shall except as expressly provided in this Act, be instituted in any court to set aside or modify any assessment made under this Act.'

13. It follows that no proceeding, except as expressly provided in the Act, be instituted in any court including a civil court to set aside or modify any assessment made under the Act. The petitioner is asking the court to set aside the assessment made under the Act without availing himself of the remedies expressly provided in the Act. I am therefore of opinion that there is no merit in the contention urged by the petitioner.

14. The last contention urged on behalf of the petitioner is that section 32 of the Mysore Sales Tax Act is violative of Article 19(1)(f) of the Constitution of India. This again, is not a point urged either before the Magistrate or in the grounds of revision in this Court. At the time of the hearing Sri Srinivasan urged this point and at the next adjourned day, he came out with this additional ground and prayed that permission may be accorded to amend the petition by including this ground. The argument is that section 20 conferred a right of appeal only on the assessee and not on persons on whom no assessment is made or on persons who are made liable to pay the tax assessed. Similarly, under section 15(1) of the Act, when the ownership of the business of a dealer liable to pay tax is entirely transferred, the transferee will be liable to pay the tax, but such transferee has no right of appeal. In section 32 of the Act, there is a prohibition from questioning the liability to pay tax and hence section 32 infringes the fundamental right to acquire, hold and dispose of the property guaranteed under Article 19(1)(f) of the Constitution. The learned High Court Government Pleader had pointed out that now under section 20 of the Act, any person objecting to an order affecting him passed under the provisions of the Act, has a right of appeal and not only a person who has been assessed. It may also be mentioned that in the instant case, the petitioner has been assessed to sales tax and he had undoubtedly a right of appeal and other remedies provided in the Act. He cannot, therefore, contend that the prohibition imposed under section 32 has caused any hardship to him, because he could have availed of all the remedies provided under the Act questioning the validity of the assessment. Since the petitioner had the right of appeal and other remedies open to him, it is quite unnecessary to consider in this case, the hypothetical instances of any hardship which may be caused to persons who were not assessed under the Act at the relevant time. Since a right of appeal is now provided under section 20 of the Act, not only to the assessee but also to any person objecting to an order affecting him passed under the provisions of the Act, the question loses its importance. At this point has not been raised in the grounds, and has no bearing in the instant case, it is unnecessary for me to decide a question which is purely academic in character and does not affect the rights of the petitioner in any way.

15. I am therefore of opinion that there is no merit in any of the contentions urged on behalf of the petitioner.

16. In the result, this revision petition fails. The same is dismissed with costs.

17. Petition dismissed.


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