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S.M. Hashim Vs. State of Karnataka and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKarnataka High Court
Decided On
Case NumberCriminal Revision Petition Numbers 913 of 1982 connected with Nos. 915 to 919 of 1982
Judge
Reported inILR1984KAR909; [1984]57STC335(Kar)
ActsKarnataka Sales Tax Act, 1957 - Sections 12, 12-B, 12-B(1), 12-B(2) and 29; Karnataka Sales Tax (Amendment) Act, 1981; Karnataka Sales Rules, 1957 - Rule 17
AppellantS.M. Hashim
RespondentState of Karnataka and anr.
Appellant AdvocateS.R. Hegde, Adv.
Respondent AdvocateS.S. Koti, High Court Government Pleader
Excerpt:
.....the act) read with rule 17 of the rules framed thereunder on the allegation that he had failed to submit returns from april, 1981 to september, 1981. the petitioner, it is not disputed, is a registered dealer and dealing in furnitures at sirsi. he is a proprietor of a firm named and styled as 'moonlight furniture'.according to the assistant commercial tax officer, who is the complainant in the cases, the petitioner having failed to submit his monthly return as provided under section 12-b(2) of the act, had committed the offence punishable under section 29(g) of the act. although the accused pleaded not guilty and contended that he was not an assessee as such, who is required to submit the returns as provided under section 12-b of the act, the learned magistrate held that under section..........the act) read with rule 17 of the rules framed thereunder on the allegation that he had failed to submit returns from april, 1981 to september, 1981. the petitioner, it is not disputed, is a registered dealer and dealing in furnitures at sirsi. he is a proprietor of a firm named and styled as 'moonlight furniture'. according to the assistant commercial tax officer, who is the complainant in the cases, the petitioner having failed to submit his monthly return as provided under section 12-b(2) of the act, had committed the offence punishable under section 29(g) of the act. although the accused pleaded not guilty and contended that he was not an assessee as such, who is required to submit the returns as provided under section 12-b of the act, the learned magistrate held that under section.....
Judgment:

Patil, J.

1. In these revisions, the petitioner has sought to challenge the legality and correctness of the judgment and order of conviction and sentence dated 29th May, 1982, passed on him in C.C. No. 1730 of 1981 by the First Additional J.M.F.C., Sirsi, and confirmed by the Sessions Judge, Karwar in Criminal Appeals Nos. 36 to 41 of 1982 on his file.

2. The petitioner was prosecuted for commission of the offence punishable under section 29(g) of the karnataka Sales Tax Act, 1957 (hereinafter referred to as the Act) read with rule 17 of the Rules framed thereunder on the allegation that he had failed to submit returns from April, 1981 to September, 1981. The petitioner, it is not disputed, is a registered dealer and dealing in furnitures at Sirsi. He is a proprietor of a firm named and styled as 'Moonlight Furniture'. According to the Assistant Commercial Tax Officer, who is the complainant in the cases, the petitioner having failed to submit his monthly return as provided under section 12-B(2) of the Act, had committed the offence punishable under section 29(g) of the Act. Although the accused pleaded not guilty and contended that he was not an assessee as such, who is required to submit the returns as provided under section 12-B of the Act, the learned Magistrate held that under section 12 and 12-B(1), every dealer was bound to submit monthly return and he having failed to send such returns had committed the offence punishable under section 29(g) of the Act.

3. On appeal, the learned Sessions Judge also agreeing with the Magistrate concluded that every dealer whether he is an assessee or not is required to send every month to the assessing authority, the statement containing such particulars as may be prescribed including the taxable turnover during the proceeding month and to pay in advance the whole amount of tax payable by him on the basis of his actual taxable turnover during the period and section 12-B(1) of the Act comes into play when a person is a dealer whether he is an assessee or not and as such the petitioner was guilty of the offence. In that view, he having dismissed the appeal, the petitioner has filed these revision petitions.

4. The contention of the petitioner is that section 12-B of the Act is not applicable to him inasmuch as he is not an assessee under the Act and therefore even if he was required to submit monthly return as provided under section 12(1) of the Act, he being a registered dealer, the failure to submit the return is not punishable under section 29 of the Act and as such the orders of conviction and sentence passed by the learned Magistrate and confirmed by the learned Sessions Judge deserves to be set aside.

5. It appears, there is a lot of force in this contention. While under section 10 of the Act (as amended by Act 7 of 1981) it is obligatory on every dealer whose total turnover in any year is not less than fifteen thousand rupees, to get himself registered under the Act. Under section 12 of the Act, notwithstanding anything contained in section 12-B, every dealer whose turnover is fifteen thousand rupees or more in a year and every dealer who is liable to get himself registered under sub-section (2) of section 10 whatever may be the quantum of his turnover shall submit such return or returns relating to his turnover in such manner and within such period as may be prescribed. Section 29(g) of the Act provides that any person who fails to submit a statement as required by sub-section (1) of the section 12-B shall on conviction in addition to the recovery of any tax or other amount that may be due from him, be punishable with simple imprisonment which may extend to six months or with fine not exceeding two thousand rupees or with both. What is made punishable under section 29(g) of the Act is the failure to submit the statement as required under sub-section (1) of section 12-B of the Act. Although it would appear that section 12-B of the Act is applicable to every dealer, by a close reading of the provision contained in sub-section (1) of section 12-B, the same was applicable only to the person who was an assessee under the Act, namely, to a person whose turnover was Rs. 15,000 or more. Therefore, the fact that as provided under section 12(1) (as amended by Act 7 of 1981) of the Act every dealer whose turnover is Rs. 15,000 or more in a year and every dealer who is liable to get himself registered under sub-section (2) of section 10, whatever may be the quantum of his turnover, is required to submit his return or returns relating to his turnover in the prescribed form within a prescribed time, is no reason whatsoever to hold that the failure on the part of the petitioner to submit the monthly return or returns constituted an offence punishable under section 29(g) of the Act, in the absence of any proof or allegation that his annual turnover was Rs. 15,000 or more as disclosed from the annual return submitted by him, as provided under rule 18 of the Rules. Any failure to submit the return to submit the return under section 12 of the Act has not been made punishable under section 29 of the Act. If such were to be the intention of the Legislature, nothing would have been difficult in specifically mentioning section 12 also in section 29 of the Act. The failure to submit return under section 12(1) so long has not been made punishable, at any rate, there is no allegation that the petitioner had failed to submit the annual return of the turnover of the year. Having regard to the fact, as observed by the learned Sessions Judge himself, the petitioner being not an assessee under the Act, he cannot be said to have committed any offence for having not submitted the return as provided under section 12-B(1) of the Act. The view taken by the Courts below, therefore, erroneous. The conviction and order of sentence passed on the petitioner-accused cannot be sustained.

6. In the result, the revision petitions are allowed. The order under revision passed by the First Additional J.M.F.C., Sirsi, in C.C. No. 1730 of 1981, dated 29th May, 1982 and confirmed by the Sessions Judge, Karwar, in Criminal Appeals Nos. 36 to 41 of 1982, dated 30th October, 1982, are set aside. The fine, if any, paid shall be refunded.


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