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State of Andhra (Now Andhra Pradesh) Vs. Bellamkonda Venkata Subbaiah and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAndhra Pradesh High Court
Decided On
Case NumberT.R.C. Nos. 32 and 33 of 1956
Judge
Reported in[1957]8STC309(AP)
ActsMadras General Sales Tax Act - Sections 2, 11, 12B(1), 13 and 16
AppellantState of Andhra (Now Andhra Pradesh)
RespondentBellamkonda Venkata Subbaiah and anr.
Advocates:M. Seshachalapati, ;G. Balaparameswari Rao and ;T.S. Narasinga Rao, Advs.
DispositionPetition dismissed
Excerpt:
.....(1), 13 and 16 of madras general sales tax act - composition of offence by prescribed authority - appeal by dealer to tribunal alleging composition amount was excessive - tribunal reduced amount of composition - revision petition filed - contended there could not be appeal against composition because composition envisaged in section 16 is bilateral act under which offer made by dealer is accepted by prescribed authority - also contended no pronouncement of finding of authority or tribunal against which aggrieved party could prefer appeal - closing of case by composition against dealer who has rendered himself liable to prosecution for violation of mandatory provisions of act is proceeding recorded by prescribed authority within meaning of section 11 - appeal would lie against such..........the composition of the offence and this was confirmed by the commercial tax officer on appeal. the dealer appealed to the tribunal urging that the composition amount was excessive.2. in t.r.c. no. 33 of 56 the offence was for failing to include particular items in the turnover and suppressing in the turnover of rs. 10, 000. in the appeal preferred by the dealer against the order of the prescribed authority fixing the amount of composition, the tribunal reduced the amount to rs. 500.3. a preliminary objection in both these appeals was raised on behalf of the state that no appeal lay. this objection was overruled by the tribunal and hence these revision petitions before us.4. the learned government pleader confined his arguments to the sole question about the entertainment of the appeal.....
Judgment:

Srinivasa Chari, J.

1. This judgment will govern T.R.C. Nos. 32 and 33 of 1956. The respondent in Tax Revision Case No. 32 of 1956 was charged for wilful submission of untrue returns and for not keeping a true and correct account as required by section 13 of the Madras General Sales Tax Act. The prescribed authority purporting to act under section 16(b) of the Act proposed a sum of Rs. 940 for the composition of the offence and this was confirmed by the Commercial Tax Officer on appeal. The dealer appealed to the Tribunal urging that the composition amount was excessive.

2. In T.R.C. No. 33 of 56 the offence was for failing to include particular items in the turnover and suppressing in the turnover of Rs. 10, 000. In the appeal preferred by the dealer against the order of the prescribed authority fixing the amount of composition, the Tribunal reduced the amount to Rs. 500.

3. A preliminary objection in both these appeals was raised on behalf of the State that no appeal lay. This objection was overruled by the Tribunal and hence these revision petitions before us.

4. The learned Government Pleader confined his arguments to the sole question about the entertainment of the appeal against an order under section 16 of the Act and urged that a composition as envisaged in section 16 of the Act from the nature of it was a bilateral act under which an offer is made by the dealer and the same is accepted by the prescribed authority. He submitted that there could not be an appeal against such an act. He contended that this was no pronouncement of a finding of an authority or tribunal against which the aggrieved party could prefer an appeal.

5. The provision of the Madras General Sales Tax Act (Andhra Amendment), 1954, which relates to appeal, is section 11. Section 11 as it stands after the amendment reads as follows :-

'Any dealer objecting to an order passed or proceeding recorded under the provisions of this Act may within thirty days from the date on which the order or proceeding was served on him appeal to such authority as may be prescribed ................ '

6. The word 'prescribed' has been defined in section 2(f) of the Act as meaning prescribed by rules made under this Act. It may be pointed out that section 11 of the Act (unamended) was to the following effect :-

'Any assessee objecting to an assessment made on him under section 9, sub-section (2), may within thirty days from the date on which he was served with notice of the assessment appeal to such authority as may be prescribed.'

7. The words 'any assessee objecting to an assessment made on him under section 9, sub-section (2)' were substituted by the words 'any dealer objecting to an order passed or proceeding recorded under the provisions of this Act'. This amendment therefore gave the right of appeal to a dealer who was aggrieved by any order passed or a proceeding recorded under this Act. The particular act of the subordinate authority against which the appeal was preferred to the Tribunal, as has been observed above, was one under section 16 of the Act. If, therefore that act of the authority is regarded as an 'order passed' or a 'proceeding recorded' then an appeal is competent. The question, therefore, to be determined is whether the prescribed authority's act of accepting the amount offered by the dealer by way of composition amounted to a proceeding recorded.

8. A proceeding in its general acceptation is an act which is done by an authority, an act necessary to be done to attain a given end. In the instant case when the dealer offered a certain sum by way of composition, the prescribed authority had to record acceptance of the same, so that the composition may be complete and effective. Therefore this act of the prescribed authority is essential to attain the given end, viz., the composition. When the prescribed authority allowed the dealer to pay a particular amount by way of composition, he does it with a view to dropping the intended prosecution for violation of the mandatory provisions of the Act. It is not an agreement between two contending parties. There is no element of a contract between the dealer on the one hand and the authority on the other. The prescribed authority does not fill the roll of a party to a contract. The fact that the dealer offers to pay an amount for the acceptance of the prescribed authority and the authority either accepts the same or mentions an alternative figure, would not make it a bilateral agreement. The real position is that the matter relating to the taking of action against the dealer is pending enquiry and consideration by the prescribed authority and in the course of such enquiry, the authority closes the enquiry by stating that the matter has been closed because the dealer composed the same. When he so disposes it of, it is a proceeding recorded by him as contemplated by section 11 of the Act. No doubt the words 'order' and 'proceedings recorded' have been used disjunctively. Therefore, in the context recording of proceedings is something different from an order. An order would indicate some expression of opinion which is to be carried out or enforced. It is the conclusion of a body (Court, authority or tribunal) upon any motion while the recording of proceeding would mean the incorporating of any matter that had happened. Proceeding has been held to mean in the Oxford Dictionary as 'a record of the business done'.

9. The closing of a case by composition, against a dealer who has rendered himself liable to prosecution for violation of the mandatory provisions of the Act is a proceeding recorded by the prescribed authority within the meaning of section 11 of the Madras Sales Tax (Amendment) Act, and, therefore, an appeal would lie against such recording of proceedings.

10. As no argument was advanced on the merits the revisions must fail and are dismissed with costs. Advocate's fee Rs. 50 in each case.


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