1. This criminal revision case relates to a reference by the District Magistrate of Raichur and purports to be under section 438 of the Code of Criminal Procedure. It is in respect of an order dated 18th October, 1962, made by the Munsiff-Magistrate, Deodurg, in Criminal Case No. 45/3 of 1962 refusing to take proceedings for the recovery of a sum of Rs. 192 which had been assessed as the sales tax due from the respondent for the year 1959-60. The Assistant Commercial Tax Officer, Raichur, had applied to the Magistrate, under section 13(3)(b) of the Mysore Sales Tax Act, 1957 (hereinafter referred to as the Act), for the recovery of this amount as if it had been a fine imposed by the Magistrate. The Magistrate refused to take proceedings on the ground that the Commercial Tax Officer had assessed a wrong person and that respondent Venkoba Naik was not the person from whom the said tax was due.
2.The Assistant Commercial Tax Officer preferred a revision petition to the District Magistrate who, being of the view that the Munsiff-Magistrate should not have refused to recover the tax, has made the present reference.
3. The respondent though served with a notice, has not appeared before us. Sri D. M. Chandrasekhar the learned Assistant Advocate-General has appeared for the State.
4. From what has been stated by the learned District Magistrate in the course of his order of reference, it appears that an argument had been advanced on behalf of the respondent, that the duty entrusted to the Magistrate under the Act for the recovery of the tax amount is not of a judicial nature but that it is of an executive nature and that no revision could be entertained. The learned District Magistrate has observed that such references had been made previously to the High Court and that the High Court had directed the Magistrate to proceed with the recovery in similar case. He was of the view that the Magistrate should not have refused to take proceedings for the recovery of the tax dues and has accordingly referred the matter to the High Court under section 438 of the Criminal Procedure Code.
5. The relevant portion of section 13(3) of the Act is as follows :-
'13. (3) Any tax assessed, or any other amount due under this Act from a dealer, may without prejudice to any other mode of collection, be recovered ......................
(b) on application to any Magistrate, by such Magistrate as if it were a fine imposed by him ....................'
6. The important question for consideration is whether the order passed by the Magistrate of Deodurg is revisable under section 438 of the Code of Criminal Procedure. If that order is not a judicial order but is only an administrative or executive order, no revision against the same would be maintainable and the reference by the District Magistrate would not be competent.
7. In his order the learned District Magistrate has not given the particulars of the previous references in which the High Court had directed the Magistrates to proceed with the recovery of tax under section 13(3)(b) of the Act. But the learned Assistant Advocate-General has brought to our notice two previous unreported decisions of this High Court, in which similar orders had been challenged in revision. Both these are decisions by single Judges. One was Criminal Revision Case No. 30 of 1962 and the other was Criminal Revision Case No. 72 of 1961. The question whether a revision petition is maintainable against an order made by the Magistrate under section 13(3)(b) of the Act and whether it would be within the competence of the District Magistrate to make a reference under section 438 of the Criminal Procedure Code in respect of such an order, was not considered in Criminal Revision Case No. 30 of 1962. The only point which seems to have been considered in that case is whether there was material irregularity in the Magistrate having overlooked the fact that the order of assessment dated 29th February, 1960, was a public document. Further, the earlier decision of this Court in Criminal Revision Case No. 72 of 1961 does not appear to have been brought to the notice of the learned Judge who decided Criminal Revision Case No. 30 of 1962. The relevant facts in Criminal Revision Case No. 72 of 1961 briefly were as follows :- An application made by the Assistant Commercial Tax Officer, Koppal, to the First Class Magistrate, Yelburga, under section 13(3)(b) of the Act for the issue of a warrant for the recovery of arrears of sales tax dues, was rejected by that Magistrate who informed the Commercial Tax Officer to file a charge-sheet against the defaulter, under section 29(1)(d) of the Act. The Commercial Tax Officer filed a revision petition before the Sessions Judge of Raichur, who, thereupon, made the reference to the High Court recommending that the order of the Magistrate be set aside. Though the High Court was of the opinion that on merits, the order of the Magistrate was not correct, it rejected the reference on the ground that a revision petition under section 435 of the Criminal Procedure Code was not maintainable in respect of the order passed by the Magistrate under section 13(3)(b) of the Act. While so rejecting, Narayana Pai, J., stated as follows :
'However, the order passed by the Magistrate does not appear to be a judicial order at all. It can be rightly described only as an administrative or executive order. The consequence is that a revision petition under section 435 of the Code of Criminal Procedure was not maintainable.'
8. No other decision of this High Court has been brought to our notice, in which the question as to whether the powers under sections 435, 436, 438 and 439 of the Criminal Procedure Code could be exercised in respect of an order made by a Magistrate while acting under section 13(3)(b) of the Act was specifically raised for determination.
9. In order to determine the nature of the proceeding and the character of the Magistrate who entertains the application for recovery of the tax, we have to examine the relevant provisions of the Act leading to the making of an application for recovery of the tax. Section 12(2) and (3) of the Act provides the manner in which the assessing authority shall assess a dealer. An assessee objecting to the assessment made on him under the aforesaid provisions can file an appeal under section 20 of the Act to the prescribed authority within thirty days from the date on which he is served with the notice of assessment. If no appeal has been preferred under section 20 in respect of any order passed or proceeding recorded by an assessing authority under any of the provisions of the Act, the aggrieved party can make an application under section 21(1) of the Act to the Deputy Commissioner for revising such order or proceeding. An assessee who is dissatisfied with an order relating to assessment passed by the Deputy commissioner whether on appeal under section 20 or suo motu under sub-section (1) of section 21 can either appeal to the Appellate Tribunal under section 22(1) of the Act or prefer an application for revision of such order under sub-section (2) of section 21 to the Commissioner. Any assessee or the Deputy Commissioner dissatisfied with an order passed by the Appellate Tribunal under sub-section (4) or (6) of section 22 can apply to the High Court under section 23 invoking its revisional jurisdiction. Section 24 further provides for an appeal to the High Court by an assessee objecting to an order relating to assessment by the Commissioner suo motu under sub-section (2) of section 21 of the Act.
10. 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) provide 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 recovery any amount of fine imposed by him. All question 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.
11. The power of the Magistrate to take proceedings for recovery of any tax assessed or any other amount due under the Act from a dealer, as if it were a fine imposed by him, accrues to the Magistrate by virtue of section 13(3)(b) of the Act and not under any provisions of the Code of Criminal Procedure. Such proceedings are mere recovery proceedings and the Magistrate does not function or exercise his authority under the Code of Criminal Procedure. Though the procedure for the recovery of such amount may be the same as for the recovery of any fine imposed by him, he is competent to recover the amount of tax, only because he is designated under the Act to recover the same. An order passed in the exercise of that power conferred under the Act cannot be said to be an order passed by an inferior Criminal Court under the Criminal Procedure Code. When no provision has been made in the Act for revision of such an order, sections 435, 436, 438 and 439 of the Criminal Procedure Code cannot be resorted to for interfering with that order.
12. In a recent decision of the Supreme Court in Dargah Committee, Ajmer v. The State of Rajasthan : 2SCR265 , the equation that arose for determination was as to whether a Magistrate who entertained an application made under section 234 of the Ajmer-Merwara Municipalities Regulation (No. VI of 1925), was an inferior Criminal Court under section 439 of the Criminal Procedure Code. That section provided for the Municipal Committee making an application before the Magistrate for recovery of expenses incurred by it in carrying out repairs to the building under section 222(4), from the owner of the building as if the amount were a tax levied by it. A contention had been raised before the High Court that a revision under section 439 of the Code of Criminal Procedure was not competent since the Magistrate entertaining the application under section 234 of the said Regulation was not an inferior Criminal Court under section 439 of the Criminal Procedure Code. This contention was accepted by the High Court and the criminal revision petition was dismissed on that ground. This view of the High Court was upheld by the Supreme Court which has stated as follows at pages 577-578 :-
'Now looking at section 234 it is clear that the proceedings initiated before a Magistrate are no more than recovery proceedings ...... In any event it is difficult to hold that the Magistrate who entertains the application is an inferior Criminal Court. The claim made before him is for the recovery of a tax and the order prayed for is for the recovery of the tax by distress and sale of the movable property of the defaulter. If at all, this would at best be a proceeding of a civil nature and not criminal. That is why, we think, whatever may be the character of the proceeding, whether it is purely ministerial or judicial or quasi-judicial, the Magistrate who entertains the application and holds the enquiry does so because he is designated in that behalf and so he must be treated as a persona designata and not as a Magistrate functioning and exercising his authority under the Code of Criminal Procedure. He cannot therefore be regarded as an inferior Criminal Court. That is the view taken by the High Court and we see no reason to differ from it.'
13. The above statement of the Supreme Court would be equally applicable to a Magistrate functioning under section 13(3)(b) of the Act; he cannot be regarded either as an inferior Criminal Court or as functioning or exercising authority under the Code of Criminal Procedure. That being so, no revision to the District Magistrate was maintainable and the reference which has been made by him is incompetent.
14. It is no doubt true that in a Division Bench decision in M. S. Diwakar v. State of Mysore ( 14 S.T.C. 625; 1962 Mys. L.J. 912), this High Court interfered in revision and considered the correctness of an order passed by the Magistrate while functioning under section 13(3)(b) of the Act. In that case, the application under section 13(3)(b) of the Act made by the Sales Tax Authorities had been resisted before the Magistrate, on the ground that the person from whom the amount was claimed was a transferee of the business and was not liable to pay the arrears that became due prior to the transfer. The Magistrate refused to entertain the objection, on the ground that no such objection could be taken in view of section 32 of the Act. In revision, the High Court quashed the order of the Magistrate and directed the Magistrate to enquire into the said objection before taking steps for realising the amount. The decision of the Supreme Court in the Dargah Committee case : 2SCR265 was not brought to the notice of the learned Judges of the High Court in Diwakar's case ( 14 S.T.C. 625; 1962 Mys. L.J. 912). Further the specific question as to whether a revision application under the Code of Criminal Procedure was maintainable in respect of an order made by the Magistrate who was merely a persona designata under the Act and was not exercising any authority or power under the Code of Criminal Procedure was not considered or even raised in that case. Therefore, Diwakar's case ( 14 S.T.C. 625; 1962 Mys. L.J. 912) cannot be considered as an authority for the proposition that such a revision application would be competent, particularly in view of the decision of the Supreme Court in the Dargah Committee case : 2SCR265 .
15. In the result, the reference made by the District Magistrate is rejected, without expressing any view on the merits of the order passed by the Deodurg Magistrate.
16. Reference rejected.