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Arisetti Appalaraju Vs. Assistant Commercial Tax Officer - Court Judgment

LegalCrystal Citation
Subject Sales Tax
CourtAndhra Pradesh High Court
Decided On
Case Number Writ Petition No. 1297 of 1958
Judge
Reported in[1961]12STC398(AP)
AppellantArisetti Appalaraju
RespondentAssistant Commercial Tax Officer
Appellant Advocate T. Anantha Babu and ; G. Ramanujulu Naidu, Advs.
Respondent Advocate The Third Government Pleader
Disposition Petition dismissed
Excerpt:
.....to doubt the statement of facts contained in the counter affidavit. in this connection the learned counsel has placed strong reliance on the decision of the madras high court in in re m. in that view the learned judges held that the conviction for the non-payment of sales tax provisionally assessed was bad. in conformity with that provision rule 17(1) was made, which runs as follows :if for any reason the whole or any part of the turnover of business of a dealer or licensee has escaped assessment to the tax in any year or if the licence fee has escaped levy in any year, the assessing authority or licensing authority, as the case may be, subject to the provisions of sub-rule (1-a) may, at any time within three years next succeeding that to which the tax or licence fee relates,..........one arisetti sriramulu, who was carrying on business in jute and groundnut was assessed under the madras general sales tax act for the assessment years 1948-49, 1949-50 and 1950-51. the sales tax authorities found on a scrutiny of the accounts of the assessee that there were large suppressions in the returns of the turnover. the authorities, therefore, determined that a tax of rs. 6,242-56 np. was due from the assessee towards which only a sum of rs. 143-17 np. was paid. a demand notice for the balance of the sum, namely rs. 6,099-39 np., was issued to the assessee on 22nd june, 1953. arisetti sriramulu died on 5th june, 1958. the sales tax authorities demanded from the petitioner who was in possession of the estate of his father the payment of the amount due and issued to him a notice.....
Judgment:
ORDER

Seshachalapati, J.

1. This is a petition under Article 226 of the Constitution of India for the issue of a writ of mandamus or other appropriate writ or order directing The Assistant Commercial Tax Officer, the respondent in this petition, to desist from seeking to collect from the petitioner the sales tax arrears due from his father.

2. The facts necessary for the disposal of this petition may be briefly stated: One Arisetti Sriramulu, who was carrying on business in jute and groundnut was assessed under the Madras General Sales Tax Act for the assessment years 1948-49, 1949-50 and 1950-51. The Sales Tax Authorities found on a scrutiny of the accounts of the assessee that there were large suppressions in the returns of the turnover. The authorities, therefore, determined that a tax of Rs. 6,242-56 nP. was due from the assessee towards which only a sum of Rs. 143-17 nP. was paid. A demand notice for the balance of the sum, namely Rs. 6,099-39 nP., was issued to the assessee on 22nd June, 1953. Arisetti Sriramulu died on 5th June, 1958. The Sales Tax Authorities demanded from the petitioner who was in possession of the estate of his father the payment of the amount due and issued to him a notice on 12th November, 1958, under Section 8 of the Revenue Recovery Act (Act II of 1864) calling upon the petitioner to pay Rs. 6,099-39 nP. on or before 9th November, 1958, in default it was notified that the attached properties would be brought to sale. This petition was filed on 19th November, 1958, challenging the legality of the proceedings initiated under the provisions of the Madras Revenue Recovery Act.

3. The petitioner states in his affidavit that he had nothing to do with his father's business, that he was neither a dealer nor an assessee under the Madras General Sales Tax Act and that he is not bound to pay the arrears of sales tax with respect to the business of his father. It is also stated that from the papers left by his father, he found that for the months of April, May and June, 1950, a sum of Rs. 5,873-5-3 was paid on 8th May, 1951, and that a receipt was also issued by the authorities therefor. It is further stated in the affidavit that to the best of his information and belief all the taxes were paid by his father and that he never told the petitioner before his death that any sum was still due to the department.

4. In addition to these allegations of fact it is urged on behalf of the petitioner, first, that he is not a defaulter within the meaning of Section 5 of the Madras Revenue Recovery Act, and secondly, that even on the assumption that Arisetti Sriramulu was liable to pay the arrears of sales tax, no such liability could be fastened upon the petitioner as there is no provision in the Madras General Sales Tax Act or the Madras Revenue Recovery Act to invest the Department with such an authority and thirdly, that the distraint is illegal in the absence of a valid demand notice.

5. In the counter affidavit filed by the respondent it is alleged that Arisetti Sriramulu and the petitioner were doing business together, that the amount of Rs. 5,873-5-3 paid on 8th May, 1951 was adjusted towards the sales tax arrears due from Sriramulu for the year 1948-49, and if that adjustment is not made the assessee would be due in a like sum for the arrears of 1948-49. I have no reason whatever to doubt the statement of facts contained in the counter affidavit. The sum paid on 8th May, 1951, had been adjusted towards the sales tax due from Sriramulu for the year 1948-49 and so the amount due under the impugned notice, namely Rs. 6,099-39 nP. remains still due and unpaid. The petitioner has stated that his father had never told him that there are any sales tax arrears. This is indeed a very naive and ingenious explanation. Even if his father had not told the petitioner, it cannot mean that the arrears cannot be collected if, in law, they can be done so.

6. The first legal contention of Mr. Anantha Babu, the learned counsel for the petitioner, is that the petitioner is not a defaulter. His contention is that the petitioner is not a dealer. Dealer has been defined in Section 2(e) of the Andhra Pradesh General Sales Tax Act as:

Any person who carries on the business of buying, selling, supplying or distributing goods, directly or otherwise, whether for cash, or for deferred payment, or for commission, remuneration or other valuable consideration, and includes (i) a State Government, local authority, a company, a Hindu undivided family or any society (including a co-operative society), club, firm or association which carries on such business....

7. It is argued that if he is not a dealer no tax can be levied against him. If he is not liable to pay any tax, then he would not be a defaulter within the meaning of Section 5 of the Revenue Recovery Act. The arrear of sales tax is a debt which is exigible from the estate of the dealer. That being so, the unpaid debt due to the Government is a debt that can be enforced against the estate of Sriramulu. It has been repeatedly held that the English doctrine relating to the priority of Crown debts appliesl in India (Vide Deputy Commissioner of Police v. Vedantham A.I.R. 1936 Mad. 132 and Manickam Chetty v. Income-tax Officer, Madurai) (1938) 1 M.L.J. 351. If so, the arrears of sales tax can be collected from the estate of the assessee as if it were a debt. The petitioner is the son of the assessee whose estate is now in his hands. If the petitioner was an undivided son and he succeeded to the estate of his father by right of survivorship, the debt would be binding upon him on the Hindu law theory of pious obligation. If, on the other hand, the estate of the deceased devolved on the petitioner by inheritance, the estate would still be subject to the payment of the lawful debts due by the deceased. In either way, the petitioner would be liable to pay the arrears of sales tax due by the father to the extent of the assets left by him and now in the hands of the petitioner. In this case there is no suggestion-and in fact there can possibly be none-that the arrears of sales tax partakes the character of Avyavaharika debt. If, in those circumstances, a lawful demand for the payment of the arrears due from Sriramulu which are exigible from his estate is made on the petitioner and the petitioner does not pay it, then I see no force in the contention that he cannot be regarded as a defaulter.

8. The next contention which was very strenuously pressed upon me by Mr. T. Anantha Babu is that there is no provision in the Madras General Sales Tax Act, which is the Act governing the assessment in question, for collecting the arrears of sales tax from a legal representative of a deceased person. The answer to this objection, to my mind, is obvious. The Madras General Sales Tax Act was repealed by Section 41 of the Andhra Pradesh Sales Tax Act, which came into force on 15th June, 1957. Section 41 of the Act provides that the repeal of the Madras General Sales Tax Act and other enactments enumerated in Sub-section (1) is subject to the proviso that the repeal shall not affect any obligation, or liability already accrued or incurred under the enactment repealed, and that all arrears of tax and other amounts due at the commencement of the Act may be recovered as if they had accrued under this Act. Under Section 16(4) of the Andhra Pradesh General Sales Tax Act the arrear of sales tax could be recovered as if it were an arrear of land revenue. Now, the question is whether under the Andhra Pradesh General Sales Tax Act, there is a provision for the collection of the arrears of sales tax from the legal representatives. If there is such a provision, then the arrears with respect to the present demand though arising under the Madras General Sales Tax Act, would, nevertheless, be a demand under the provisions of the Andhra Pradesh General Sales Tax Act, 1957. Under Section 39(2)(o) of the Act the State Government is authorised to make rules for the assessment and recovery of tax under the Act in respect of a business which is discontinued or the ownership of which has changed or in respect of a business of a deceased person.

9. Under the terms of the power so confided, the State Government have in the rules published on 15th June, 1957, framed Rule 23, which is in these terms :

23. (1) Where any dealer doing business in respect of which tax is payable under this Act is dead, the executor, administrator, successor in title or other legal representative of the deceased dealer shall, in respect of such business, be liable to submit the returns due under these rules, and to assessment under Section 5 or 6 or any notification under Section 9(1), and to pay out of the estate of the deceased dealer, the tax and/or any penalty assessed or levied as payable by the deceased dealer.

(2) The provisions relating to appeals and revision, shall be applicable to assessments made under Sub-rule (1) as if the executor, administrator, successor in title or other legal representative were himself the dealer.

(3) The provisions of Sub-rules (1) and (2) shall apply mutatis mutandis to a partnership firm of which the managing partners have died.

10. To my mind, this gives a complete answer to the contention of Mr. Anantha Babu. But what the learned counsel contends is that this rule is not valid for the reason that it is in excess of legislative sanction. It is argued that whenever the legislature had intended to collect taxes from a person other than a dealer as defined in Section 2(3) of the Act it had said so. Section 17 of the Act provides for the recovery of tax and other dues payable under the Act from persons from whom the money is due to the dealer. Section 18 provides for the recovery of tax where a dealer has transferred his business. There is no provision, contends Mr. Anantha Babu, in the main body of the Act providing for the recovery of a tax due by a dealer from his legal representative. Rule 23 purporting to have been made under Section 39(2)(o) is incompetent as there is no main statutory provision in the body of the Act authorising the procedure laid down in the rule. In this connection the learned counsel has placed strong reliance on the decision of the Madras High Court in In re M.P. Kumaraswami Raja, A.I.R. 1955 Mad. 326. There, the question was as to the validity of provisional assessment to sales tax. The learned Chief Justice and Rajagopala lyengar, J., took the view that Rules 7 and 8 of the Madras General Sales Tax (Turnover and Assessment) Rules, 1939, enabling the levy and collection of provisional assessment are in excess of the charging section (section 3 of the Madras General Sales Tax Act) under which the liability for the tax of a year does not accrue till the end of that year. In that view the learned Judges held that the conviction for the non-payment of sales tax provisionally assessed was bad. This decision is relied on by Mr. Anantha Babu in support of the proposition that a rule cannot enlarge the scope of the charging section. The charging section, Section 5(1), under the Andhra Pradesh General Sales Tax Act refers only to a 'dealer'. Therefore, it is argued that a rule cannot legislate and make the legal representative liable for the tax when in the body of the Act there is no such provision. If the rule purports to do so, it is contended that it would be a case of excessive and unauthorised delegation of legislative functions.

11. A similar contention was advanced before a Bench of this Court in Venkateswara Rao v. Deputy Commissioner of Commercial Taxes [1959] 10 S.T.C. 162. There, one of the questions raised was that Rule 17 of the Madras General Sales Tax Rules, 1939, which vests the jurisdiction in an assessing authority to re-assess escaped turnover was ultra vires on the ground of unconstitutional delegation of the legislative power. Under the Madras General Sales Tax Act there was no provision in the body of the Act for the levy of assessment on escaped turnover. Section 19(2)(f) of the Madras General Sales Tax Act for the making of rules provides for the assessment of the tax under the Act on any turnover which had escaped assessment, and the period within which such assessment might be made, not exceeding three years. In conformity with that provision Rule 17(1) was made, which runs as follows :

If for any reason the whole or any part of the turnover of business of a dealer or licensee has escaped assessment to the tax in any year or if the licence fee has escaped levy in any year, the assessing authority or licensing authority, as the case may be, subject to the provisions of Sub-rule (1-A) may, at any time within three years next succeeding that to which the tax or licence fee relates, determine to the best of his judgment the turnover which has escaped assessment and assess after issuing a notice to the dealer or licensee and after making such enquiry as he considers necessary.

12. It was argued before the learned Chief Justice and Satyanarayana Raju, J., that the rule is incompetent as it represents an abdication of the legislative functions by the legislature and would, therefore, amount to excessive delegation. That argument was repelled by the learned Judges, who observed as follows:-

In empowering the Government to make rules, what the Legislature has done is to merely authorise the rule-making authority to carry out the policies enunciated in the statute and to fill up the details and there is (sic) scope for the argument that there has been delegation of a legislative function to the rule-making authority. The present case is an a fortiori case because under Section 19(2)(f) there is a specific provision within the framework and the body of the statute empowering the Government to make rules to determine and tax the turnover which has escaped assessment.

13. To my mind, this case is a direct authority for the proposition that if in the rule-making section it is specifically mentioned that a rule could be made for a particular subject, then that provision must be deemed to be an integral part of the enactment. Section 39(2)(o) is in the body of the Act itself. It may not form part of the group of sections, such as 17 and 18 authorising the collection of sales tax from a person other than a dealer. But the provision under Section 39(2)(o) does not cease to be an integral part of the Act, simply because it is not enacted as a substantive section but has been relegated to one of the enumerated subjects in Section 39(2). It has been suggested that the legislature has not indicated in Section 39(2)(o) any criteria that should be adopted in the making of the rule and that the provision for the assessment and recovery of tax due by a deceased person is so vague that it practically leaves to the rule-making authority the power to legislate. There is no substance in this contention. The business referred to in Section 39(2)(o) is the business of a dealer, who is liable to assessment and from whom tax is to be recovered. There is no uncertainty in the provision such that it is susceptible to the argument that the rule-making authority can fasten the liability on a person wholly unconnected with the business of the deceased person.

14. In these circumstances, I am unable to appreciate the contentions of Mr. Anantha Babu. If Rule 23 made under Section 39(2)(o) of the Act is valid-and I see no reason why it is not-then the the tax payable by Arisetti Sriramulu can be realised from his estate in the hands of the petitioner and if the petitioner has not paid the tax on demand, I see no inhibition to the provisions of the Revenue Recovery Act being put in motion. There is no force in the contention that there is no valid notice of demand.

15. I am of opinion that this writ should also fail for another reason. Under Section 59 of the Revenue Recovery Act, there is a specific effective alternative remedy by way of a suit. That section is in these terms:

Nothing contained in this Act shall be held to prevent parties deeming themselves aggrieved by any proceedings under this Act, except as hereinbefore provided, from applying to the Civil Courts for redress; provided that Civil Courts shall not take cognizance of any suit instituted by such parties for any such cause of action, unless such suit shall be instituted within six months from the time at which the cause of action arose.

16. In these circumstances, the writ petition fails and is dismissed with costs. Advocate's fee Rs. 100.


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