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Channappa Kori and Brothers Vs. Commercial Tax Officer, Dharwar District I, Hubli and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKarnataka High Court
Decided On
Case NumberWrit Petition Nos. 1178 to 1182 of 1961
Judge
Reported inILR1962KAR667; [1962]13STC943(Kar)
ActsBombay Sales Tax Act, 1953 - Sections 3 and 14; Mysore Sales Tax Act, 1957 - Sections 40(1) and 40(2)
AppellantChannappa Kori and Brothers
RespondentCommercial Tax Officer, Dharwar District I, Hubli and anr.
Appellant AdvocateB.V. Katageri, Adv.
Respondent AdvocateD.M. Chandrasekhar, High Court Government Pleader
Excerpt:
.....to file complaint held, authorisation is necessary. even a person who is looking after entire business affairs of firm cannot file such complaint without authorization. in the absence of authorization, complaint is liable to be dismissed. - under section 40(1) of the mysore sales tax act, 1957, the bombay sales tax act, 1953, as well as other enactments in force in the state were repealed. katageri that the assistant commercial tax officer had no jurisdiction to function under the provisions of the bombay sales tax act, 1953. 8. in the result, these petitions fail and they are dismissed with costs......concerned are dealers in the bombay area of the mysore state. they were assessed to tax under the bombay sales tax act, 1953. that act was in force till 1st october, 1957. on 1st october, 1957, the mysore sales tax act, 1957, came into force. under section 40(1) of the mysore sales tax act, 1957, the bombay sales tax act, 1953, as well as other enactments in force in the state were repealed. but the proviso to section 40(1) provides : 'provided that such repeal shall not affect - (a) the previous operation of the said enactments or anything duly done or suffered thereunder; or (b) any right, privilege, obligation or liability acquired, accrued or incurred under the said enactments; or (c) any penalty, forfeiture or punishment incurred in respect of any offence committed against the.....
Judgment:
ORDER

Hegde, J.

1. The only contention raised in these petitions is that the Assistant Commercial Tax Officer had no competence to make the assessments impugned in these petitions, all of which relate to transactions effected on or before 1st October, 1957. All the assesses concerned are dealers in the Bombay area of the Mysore State. They were assessed to tax under the Bombay Sales Tax Act, 1953. That Act was in force till 1st October, 1957. On 1st October, 1957, the Mysore Sales Tax Act, 1957, came into force. Under section 40(1) of the Mysore Sales Tax Act, 1957, the Bombay Sales Tax Act, 1953, as well as other enactments in force in the State were repealed. But the proviso to section 40(1) provides :

'Provided that such repeal shall not affect -

(a) the previous operation of the said enactments or anything duly done or suffered thereunder; or

(b) any right, privilege, obligation or liability acquired, accrued or incurred under the said enactments; or

(c) any penalty, forfeiture or punishment incurred in respect of any offence committed against the said enactments; or

(d) any investigation, legal proceeding (including assessment proceeding) or remedy in respect of any such right, privilege, obligation, liability, forfeiture or punishment as aforesaid;

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if this Act had not been passed.'

2. Sub-section 2(b) to section 40 says :

'Notwithstanding anything contained in sub-section (1), for the purpose of giving effect to the preceding proviso to the said sub-section (1), the State Government may, by notification, make such provision as appears to it to be necessary or expedient for specifying the authority, officer or person who shall be competent to exercise such functions exercisable under any of the repealed enactments or any rules, notifications, or orders issued thereunder as may be mentioned in the said notification.'

3. Under section 14 of the Bombay Sales Tax Act, 1953, 'Collector' is authorised to levy sales tax. But under section 44, the 'Collector' was empowered to delegate by order in writing any of his powers and duties under that Act to any person appointed under section 3 to assist him. Sales Tax Officers were appointed under section 3 and they were empowered to levy sales tax. After the Mysore Sales Tax Act, 1957, came into force the functions of the 'Collector' were made over to the 'Commissioner', and the 'Sales Tax Officers' were replaced by 'Commercial Tax Officers.' In Writ Petitions Numbers 555, 556 and 574 of 1962 (Since reported as Krishnasa v. Commercial Tax Officer, Dharwar-III, Dharwar [1962] 13 S.T.C. 940), we have held that the 'Commissioner' has been validly designated to take the place of the 'Collector' appointed under the Bombay Sales Tax Act, 1953. We have also held that the substitution of the 'Sales Tax Officer' by the 'Commercial Tax Officer' wag validly done. The question now is whether the 'Commissioner' had competence to authorise the Assistant Commercial Tax Officer to discharge the functions of the Commercial Tax Officer to any extent.

4. We may recapitulate that the obligation or the liability incurred under the Bombay Sales Tax Act continued to be in force in view of clause (b) to the proviso to section 40(1) of the Mysore Sales Tax Act, 1957. Similarly any investigation, legal proceedings (including assessment proceeding) commenced under the Bombay Act could be continued under the new Act, in view of clause (d) of the proviso to section 40(1). For the purpose of giving effect to the provisions contained in the proviso to section 40(1), the State Government may by notification specify the authority, officer or person who shall be competent to exercise such functions exercisable under any of the repealed enactments or any rules, notifications, or orders issued thereunder, as may be mentioned in the said notification. By its Notification No. RD.22 STL/58-3 dated 25/26th June, 1958, the State Government declared that the function of the 'Sales Tax Officer' under the Bombay Sales Tax Act, 1953, could be discharged by (i) 'Commercial Tax Officer', and (ii) 'Assistant Commercial Tax Officer'. The Commissioner by his Notification No. 54-189/58-59 dated 3rd July, 1958, issued in exercise of his powers conferred by sub-section (2) of section 44 of the Bombay Sales Tax Act, 1953, directed that all proceedings pending before the Commercial Tax Officers in the Belgaum Division, with which we are concerned in this case, in respect of dealers with a turnover not exceeding Rs. 1,00,000 be transferred to the respective Assistant Commercial Tax Officers having jurisdiction over the same area and that all powers delegated to the Sales Tax Officers shall be deemed to have been delegated to the Assistant Commercial Tax Officers also in regard to these cases.

5. From the foregoing it is clear that the powers of the Sales Tax Officer appointed under the Bombay Sales Tax Act, 1953, have now been transferred to the Assistant Commercial Tax Officers in respect of the dealers with a turnover not exceeding Rs. 1,00,000. The validity of the appointment of the Assistant Commercial Tax Officer by the State cannot be challenged in view of section 40(2)(b). They were appointed to discharge the functions arising under clauses (a) to (d) of the proviso to section 40(1) of that Act. The Commissioner had without doubt competence to delegate his powers to the Assistant Commercial Tax Officer who must now be deemed to be an officer appointed under section 3 of the Bombay Sales Tax Act, 1953, to assist him and he has delegated some of his powers as per the notification dated 3rd July, 1958. It is true that under rule 2(viii) of the rules framed under the Bombay Sales Tax Act, 1953, 'Sales Tax Officer means in respect of any place of dealer the Sales Tax Officer appointed as such with jurisdiction for the area in which such place of business is situated by the State Government under section 3 to assist the Collector'. But this rule stands modified in view of the notifications above referred to.

6. We have no hesitation in coming to the conclusion that the Assistant Commercial Tax Officer has been validly appointed and the delegation made to him is a valid delegation.

7. For the reasons mentioned above, we do not find any substance in the contention of Sri B. V. Katageri that the Assistant Commercial Tax Officer had no jurisdiction to function under the provisions of the Bombay Sales Tax Act, 1953.

8. In the result, these petitions fail and they are dismissed with costs. Advocate's fee Rs. 100 (One set).

9. Petitions dismissed.


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