1. This order will also govern the disposal of Miscellaneous Petitions Nos. 312 and 323 of 1963.
2. The petitioners in these three applications under Articles 226 and 227 of the Constitution of India challenge the validity of notices issued to them under Section 22 (4) (a) of the Madhy a Pradesh General Sales-Tax Act, 1958 (hereinafter referred to as the Act), calling upon them to deposit in the Government Treasury, Bilaspur, within 30 days of ths receipt of the notices by them, the amounts of sales tax specified in the notices, and seek writ of certiorari for quashing those notices.
3. The material facts are that the petitioners, who are registered dealers under the Act, filed with their returns for certain quarters treasury challans in respect of the payment of tax due from them according to the returns submitted by them as required by Rule 15 of the Madhya Pradesh General Sales Tax Rules, 1959 (hereinafter referred to as the Rules). In due course, assessment orders for those quarters were made and the balance of tax payable by them after giving credit for the amount paid as shown in the challans was determined by the Sales Tax Officer. Thereafter, when accounts of sales tax amounts deposited in the Sales Tax Officer's register and the amounts as shown deposited in the treasury accounts were verified, itwas discovered by the Sales Tax Officer that the amounts shown as deposited in some of the challans filed by the petitioners had not actually been deposited in the treasury and that the challans had been fabricated.
In the case of the petitinner-firm Harpaldas Jairamdas in Misc. Petition No. 324 of 1963, the Sales Tax Officer found that one challan bearing No. P. 279, dated 27th November 1959, filed by it along with the return for the quarter ending 31st October 1959 showed a payment of Rs. 1994/- into the treasury but the actual payment made was only of Rs. 94/- under challan No. 3, dated 27th November 1959. The Sales Tax Officer, therefore, issued a notice under Section 22 (4) (a) to the petitioner-firm on 17th March 1963 calling upon it to pay the amount of Rs. 1900/-. On 7th August 1963 the Sales Tax Officer issued another notice under section 22 (4) (a) of the Act to the firm Harpaldas Jairamdas calling upon it to pay a sum of Rs. 4 000/- into the treasury as challan No. 191, dated llth February 1961, which it had filed along with the return for the quarter ending llth January 1961 showed the payment of Rs. 4,159.59 nP., but the actual payment made into the treasury was Rs. 159.59 nP. under challan No. 141 dated llth February 1961.
The firm replied to these notices saying that it had deposited the full amount into the treasury as shown by the challans filed by it along with its returns, and that at the time of the assessment the Sales Tax Officer did not doubt the correctness of the payment made by the firm and praying that the records of the assessment be made available for its inspection in order to enable it to ascertain the facts of the payments and further praying that the recovery proceedings should be suspended. The Sales Tax Officer, Bilaspur, took the view that the firm had not shown any valid cause against the recovery) and initiated proceedings for recovery of the amount as arrears of land revenue. On 18th September 1963 the Additional Tahsildar, Bilaspur, issued a demand notice under section 146 of the Madhya Pradesh Land Revenue Code to the firm-Harpaldas Jairamdas for the payment of Rs. 4,000/- within seven days of the receipt of the demand notice.
4. The petitioner Madhoprasad in Misc. Petition No. 312 of 1963 was also served with similar four notices on 30th July 1963, 7th August 1963 and 9th September 1963 calling upon him to pay the amount stated in the notices being the difference between the amounts shown as paid in certain challans filed by him along with his returns lor certain quarters and the amounts actually deposited in the treasury under different challans. He also replied to the notices of demand saying that he had made full payment into the treasury of the amounts as shown by the challans filed by him and questioning the legality of the notices under Section 22 (4) and praying that the notices be cancelled. The notice which was issued to him on 7th August 1963 for the payment of Rs. 2100/- was followed by a notice dated 9th September 1963 under section 146 of the M. P. Land Revenue Code for the payment of that amount.
5. The third petitioner Hukumchand in Misc. Petition No. 323 of 1963 also received two notices dated 19th August 1963 and 31st August 1963 telling him 'with reference to certain challans filed by him with his returns that the amount of tax as shown in those challans had not been deposited in the treasury and calling upon him to pay the difference between the amounts stated in those challans and the amounts actually credited 'in the treasury :under 'certain challans. In his reply to these notices, Hukumchand said that he had paid the full amount as shown in tha challans filed by him along with his returns and at the time of the making of the assessment orders forthe relevant periods it was accepted by the Sales Tax Officer that the amount shown as paid in the challans filed with the returns had been deposited in the treasury.
6. The petitioners have raised several grounds challenging the validity of the notices issued to them; but the burden of all of them is that they having filed with their returns treasury challans showing payment of tax due from them according to the returns, and those payments having been accepted by the Sales Tax Officer in the assessment orders made against them, the Sales Tax Officer had no jurisdiction to issue any notice of demand under Section 22 (4) (a); that the filing of the challans along with the returns showing payment of tax amount stated therein absolved them from all liability for the payment again of the amount shown as already paid in the challans; that the assessment orders having been passed, no notice under Section 22 (4) (a) could be issued without reopening and modifying the assessment; and that as long as the assessment orders made against them stood, the Sales Tax Officer had no jurisdiction to issue the impugned notices.
7. In the returns filed on behalf of the opponents opposing the petition it has been averred that the Sales Tax Officer acted within his authority in issuing the notices that he did under Section 22 (4) (a) when he found that the petitioners had not actually deposited in the treasury the full amount shown as paid in some of the challans filed by them along with their returns; and that the petitioners in conspiracy with some clerks of the treasury and the Sales Tax Office? practised fraud on the State in actually depositing into the treasury amounts much less than those shown in some of the challans filed by them along with their returns.
According to the opponents, the modus operandi adopted by the petitioners in the commission of this fraud was that challans in triplicate were used to be prepared for a very small.sum; that when the challans were 'got passed', the small amounts in them used to be deposited with the treasury or the Bank; that the third copy of the challan which the petitioners used to file along with their returns was then altered so as to show a much larger deposit into the treasury; that it took some time for verification of the statement of the account maintained in the Sales Tax Office and in the treasury and the Bank; that when this verification was done, the fraud was discovered; and that a report has already been lodged with the police against the petitioners and some other persons who had conspired in the commission of this fraud. The opponents further say that a notice under Section 22 (4) (a) does not involve any reopening or review of the assessment and that the notices which were issued to the petitioners did not in any way result in any modification in the assessment made against them.
The petitioners have filed before us supplementary affidavits denying the allegations of fraud made against them in the returns filed on behalf of the opponents. They have said that they never forged or interpolated any challan and have paid into the treasury the full amounts as shown in the challans filed by them; and that some clerks 'in the office of Sales Tax Department and in the treasury and in the State Bank have done away with certain documents.'
8. In our judgment, these petitions cannot be sustained. From what has been stated above it is plain that the controversy in these petitions centres round the question of the legality of proceedings initiated against the petitioners for the recovery of a part of the amount of sales tax to which they have been assessed. The question ot the legality of the assessments made against the petitioners is not in issue in these proceedings. In order to see whetherthe argument put forward on behalf of the petitioners assailing the validity of the notices issued to them is tenable, it is first necessary to refer to the relevant provisions of the Act and of the rules made thereunder. The first material provision is Section 17 (1) which is as follows :
'Every such dealer as may be required so to doby the Commissioner by notice served in the prescribed manner and every registered dealer shall furnish returns in such form, for such period by suchdates and to such authority as may be prescribed.
Rule 15, which is contained in Part V of the rules bearing the heading 'Return of Turnover and Statement of Purchase', inter alia, says that every registered dealer shall furnish to the appropriate Sales Tax Officer for each quarter of a year a return in form VIII within the time prescribed in the rule and that each of such returns submitted shall be accompanied by a treasury receipted challan in form VI in respect of the tax due according to the return. In the prescribed form VIII in which a return has to be submitted, the dealer has to state his name and address: and registration number, give the details of his gross turnover and of the deductions permissible under the Act, and state the total amount on which tax is payable as also the amount of tax payable and the tax paid into the treasury giving treasury challan numbers and their dates.
9. The next section that needs notice is Section 18 (1) of the Act which lays down that :
'If the Commissioner is satisfied that the returns furnished by a registered dealer in respect of any year are correct and complete, he shall assess the dealer on them.'
Sub-section (2) of Section 18 deals with the procedure which the Commissioner is required to follow if he is not satisfied that the returns furnished by a registered dealer are correct and complete. The third subsection provides that after hearing the dealer or his agent and examining the evidence produced in compliance of Sub-section (2) and such further evidence as the Commissioner may require, the Commissioner shall assess the dealer to tax. Sub-section (4) is concerned with the circumstances in which the Commissioner can assess the dealer to the best of his judgment. The other sub-sections of Section 18 are not material here. By Rule 36 it is provided that an order of assessment under Section 18 shall be in form XVIII. According to this form, the order of assessment should contain, among others, the details of gross turnover in respsct of sales of goods, turnover, deductions permissible under the Act, taxable turnover, total amount on which tax is payable, tax paid with challan numbers and their dates, and the total amount of tax due from the assessee.
10. The payment and recovery of tax and other dues under the Act is the subject-matter of Section 22, the relevant portions of which are as follows :
'22. Payment and recovery of tax and other dues under the Act :
(1) The tax payable for each year shall be paid in the manner.hereinafter provided at such intervals as may be prescribed.
(2) Before any registered dealer furnishes any return required by Sub-section (1) of Section 17, he shall pay into a Government treasury in the prescribed manner the full amount of tax due from him under this Act according to such return.
(3) If a revised return submitted by a registered dealer in accordance with Sub-section (2) of Section 17 shows a greater tax to be due than was shown in the original return he shall pay the difference in to a Government treasury.
(3-A) * * * *
(4) The amount of tax--
(a) due where the returns were furnished without fall payment of tax, or
(b) assessed under Sub-sections (1), (3) and (4) of Section 18, less the sum, if any, already paid by the dealer in respect of the said year together with the penalty, if any, directed to be paid under Sub-section (3) of Section 17, or
(c) assessed under Sub-section (5) or Sub-section (6) of S. 18 or Section 19, together with the penalty, if any, directed to be paid thereunder,
Shall be paid by the dealer into a Government treasury by such date as may be specified in a notice to be issued by the Commissioner for this purpose and the date to be so specified shall be not less than thirty days from the date of service of such notice :
Provided that the Commissioner may, for reasons to be recorded in writing and on such conditions, as he may deem fit, grant further time to such dealer or allow him to pay the tax, together with any penalty incurred, by instalments.
5. Any tax or penalty or part thereof left unpaid after the date specified in the said notice and any licence fee, registration fee, or exemption fee due and not paid by a dealer within the time specified therefor, shall be recoverable as an arrear of land revenue.
* * * * '
Rule 37 prescribes that if any sum is payable by adealer under any of the provisions mentioned in thatrule, which includes Section 18 of the Act, the Commissioner shall serve a notice in form XIX upon himspecifying a date, not less than thirty days from thedate of service of the notice, on which payment shallbe made, and it shall also fix a date on or beforewhich the dealer shall produce or send the treasuryreceipted challan in proof of payment of such sum.Rule 38 is concerned with the recovery of the unpaidtax amount as an arrear of land revenue. It is in thefollowing terms : '38. Recovery of tax, penalty and fee from the defaulting dealer.--If after the date fixed under Rule 37 or when the date is extended under proviso to Sub-section (4) of Section 22, after the extended date, the sum assessed or any part thereof, or penalty or fee, if any remains unpaid, the assessing authority shall apple to the Collector of the district in which the dealer's place of business or principal place of business, as the case may be, is situated for recovery of the whole amount of the tax, penalty and fee, if any, remaining unpaid as an arrear of land revenue.'
11. Shri Dharmadhikari, learned counsel appearing for the petitioners, first submitted that as the assessee was required under Rule 15 to file his return in form No. VIII in which the tax amount paid into the treasury had to be stated giving the details of the treasury challan number and date, and was also required by the same rule to file along with his return a treasury receipted chalan in form VI, and as according to Rule 38 an order of assessment under Section 18 had to be in form XVIII giving the details of the tax amount already paid by the assessee, and stating the total balance of the tax amount due from him, after deducting the amount of tax paid from the amount of net tax found payable by him, there. fore, the details given in the assessment order with regard to tax amount paid by an assessee according to the challans filed by him along with his returns were an integral part of the assessment order; that after the making of an assessment order any alteration in the figure of the amount of tax as shown paid in the challans with the return resulted in a modification or rectification of assessment; and that consequently if after the passing of an assessment order the Sales Tax Officer found that the tax amount asshown paid in the challans filed with the return and entered in the assessment order was not actually paid, he could not issue a notice under Section 22 (4) for the payment of the shortfall between the tax amount actually paid into the treasury and that as shown paid in the challans without reopening the assessment.
12. This contention is, in our opinion, unsubstantial. It will be observed that Sections 17,18 and 22, deal with three distinct and separate matters. Section 17 is concerned only with the filing of the returns and the form in which they are to be filed. and has nothing to do with assessment of tax or the recovery of tax assessed. These matters are dealt with by Ss. 18 and 22. Whereas S. 18 provides for the assessment of a dealer to tax, S. 22 lays down the procedure to be followed for the recovery of tax assessed. The word 'return' has not been defined either in the Act or in the Rules made thereunder. It obviously means a ''report' and as the heading of Part V of the Rules, namely, 'Return of turnover and Statement of Purchase' indicates, the return or report which the assessee is required to furnish for the purpose of assessment is about his turnover in. respect of his sales transactions. Under Section 22 (2) before furnishing any return, a registered dealer is. required to pay into the treasury the full amount of tax due from him under the Act according to the return. In the prescribed form of return the' assessee is no doubt required to state the amount of tax due from him under the Act and give details of the payments made into the treasury. But it is plain enough that any statement in the return of the assessee about his own estimate of the tax due from him under the Act according to the return and the details therein about the payment of that tax amount into the treasury do not constitute any material on the basis of which an assessment is made under Section 18. The assessment of sales tax under the Act is on the basis of taxable turnover of the assessee determined after taking into account the gross turnover and the permissible deductions. For the purpose of an assessment it is the details with regard to these matters which are entered in the return that are material.
13. Section 18 speaks of assessment of tha dealer to tax. The words 'assessment' and 'assess' as used in Section 18 mean the computation of the taxable turnover and the determination of the tax amount payable by him on the basis of such computation. In this computation and determination, the assessee's estimate of tax payable by him under the Act according to the return filed by him and the fact of payment of that tax amount into the treasury do not come into the picture at all. The amount of tax paid by the assessee into the treasury before filing his return has a bearing only on the question of the actual amount payable by him and recoverable from him after a valid order assessing him to tax has been made under Section 18. The amount actually paid by him into the treasury before the filing of the return is nothing but the recovered amount--may be wholly or partly--of the tax to which he has been held, liable under a valid assessment order made under Section 18.
This advance amount paid by the assessee into the treasury is not an integral part of the order assessing him to tax. What is integral is the total amount of tax which he has been held liable to pay after the computation of the taxable turnover and the determination of the tax amount on it. The fact that in an assessment order drawn up according to the prescribed form under Rection 36 details of tax already paid by the assessee before the filing of the return have to be given and the balance of tax amount due from him after giving credit for these payments has to be stated cannot make a decision with regard tothe amount of tax deposited into the treasury before the filing of the return an inextricably woven and integral part of the assessment order. The meaning of 'assessment' has to be derived from the language of Section 18 itself. It cannot be determined by any reference to the words of a mere form prescribed for convenience. The rule is well settled that the meaning of an Act should not be derived from the forms which have been prescribed by the Government under the rule-making powers under the Act.
14. In our opinion, the question whether a certain tax amount was or was not actually paid by the assessee into the treasury before filing his return is truly and essentially a question of the recovery of the tax amount to which he has been assessed withreference to his taxable turnover, and falls under Section 22 of the Act. That being so, if after the making of an assessment order it is found that certain amounts shown in the challans filed by the assessee along with his return as paid into the treasury were not paid at all or an amount less than that shown in the challans was paid, then the sales tax authority can issue a notice to the assessee under Section 22 (4) (a) read withRule 37 for the payment of the 'unpaid amount'. Clause (a) of Section 22 (4) in terms applies to a situation when the return was submitted without full payment of the amount of tax due from the assessee according to the return. A notice under Section 22 (4) (a) has clearly not the effect of modifying or rectifying the assessment order. It does not in any way alter the amount of tax to which the assessee has been held liable with reference to his taxable turnover. It remains the same, and the notice only purports to recover the tax so assessed. The contention, therefore, of the petitioners that the Sales Tax Officer had no jurisdiction to issue the impugned notices without reopening the assessments made against them cannot be accepted.
15. There is no foundation in any provision of the Act and the Rules for the further contention of the learned counsel for the petitioners that the petitioners were absolved from all liability for the payment of the tax amount shown as paid in the challans filed by them along with the returns when their returns were accepted by the Sales Tax Officer and the assessments were made. It is true that section 18of the Act lays down that if the Commissioner is satisfied with the returns furnished by a registereddealer, he can assess the dealer on the basis of the returns. But as the fact of payment ot tax amount in the treasury before the filing of the return does not enter into the computation of the taxable turnover and the determination of the tax amount payableunder the Act with reference to that turnover, the 'satisfaction' of the Commissioner mentioned in Section 18 (1) can only be with regard to his satisfaction about the correctness and completeness of the turnover entered in the return.
At the stage of the filing of a return with the challan indicating the payment of certain amount into the treasury, there can be no question of embarking upon any enquiry into the question whether certain payment shown in the challan purporting to bear the seal and signature of the Treasury Officerwas or was not actually paid into the treasury. When a cballan in the prescribed form bearing the seal of the treasury and the signature of the TreasuryOfficer is filed before the Sales Tax Officer, he has to treat it as prima facie genuine. He cannot start with a suspicion. Indeed, it is impossible for the Sales Tax Officer to know whether the payment shown inthe challan was or was not actually made into the treasury until the verification and reconciliation of payments is done on the records of the Sales TaxOfficer and the treasury.
Rule 31 prescribes the procedure for verificationand reconciliation of payments. This necessarily takes some time and it may not be possible to know for some time even after the assessment is made whether the amount of tax shown in the challans filed with the returns was or was not actually paid into the treasury. It is for this purpose that Section 22 (4) (a) has been enacted enabling the Commissioner to give a notice calling upon the assessee to pay the amount of tax due 'where the returns were furnished without full payment of tax.' Clause (b) of Sub-section (4) also gives to the Commissioner the power to recover the amount of tax assessed 'less the sum, if any, already paid by the dealer' by the issuance of a notice under Sub-section (4) read with rules 37 and 38. Clauses (a) and (b) of Sub-section (4) of section 22 only point to the fact that an assessee is not absolved from the payment of tax amount due from him by merely filing a challan with the return showing the payment of tax without reference to the question whether the tax amount was or was not in fact paid into the treasury.
The petitioners cannot, of course, be called upon to pay the tax amount twice if they did in fact pay into the treasury the amounts which are now sought to be recovered from them. But the question whether they did or did not in fact pay these amounts into the treasury is a question of fact which cannot be enquired into in proceedings under Articles 226 and 227 of the Constitution. For that reason we make no comment on the statement in the returns filed by the opponents to the effect that the petitioners in collaboration with some clerks of the treasury and the sales tax office practised fraud on Government and that a report has been lodged against them with the police for appropriate criminal action, and on the affidavits filed by the petitioners in reply to those statements. Indeed, it would be improper for us to make any observation calculated to influence or prejudice in any way the course of police investigation and further action in the matter.
16. Learned counsel also argued that the impugned notices issued to the petitionor fcalling upon them to pay certain amounts of tax constituted rectification of mistakes in the assessment which could be done only in conformity with section 45 of the Act and that the Sales Tax Officer had not complied with the provisions of that section. This ground has not been taken in any of the petitions. Be that as it may, this contention is not sound. Even if it be taken that a mistake with regard to credit of tax amount into treasury is a mistake in the record of assessment proceedings, no notice for the rectification of the mistake was necessary to the petitioners under the proviso to Section 45 inasmuch as the rectification did not have the effect of enhancing the tax amount to which the petitioners were assessed, or of reducing the amount of any refund given by the assessment orders. As we have endeavoured to point out: earlier, the amount of tax to which the petitioners have been assessed on the basis of their taxable turnover under the assessment orders remains the same, and the notice is issued to them only for the purpose of recovering part of tax amount to which they have been assessed.
17. Under the substantive part of Section 45 (1), the Commissioner can make the rectification witk regard to payment of tax amount at any time within two years from the date of the assessment order. Under the proviso it is only when the intended rectification has the result of enhancing the tax amount or reducing the amount of refund that the Commissioner is required to give a notice in writing to the dealer of his intention to rectify the error and allow the dealer a reasonable opportunity of being heard.
18. Lastly, it was said that the petitioners should have been given an opportunity of showing thatthey had actually paid into the treasury the amounts which they were again being called upon to deposit by the notices issued to them and that the Sales Tax Officer should not have initiated recovery proceedings without first determining whether the petitioners did or did not in fact pay into the treasury the amounts shown in the suspected challans. This is no doubt true, but the petitioners cannot deny that they were not given any such opportunity. The impugned notices issued to the petitioners did not preclude them from convincing the Sales Tax Officer that payments under the challans filed by them with their returns and referred to in the notices were in fact made into the treasury. As a matter of fact, all the petitioners did reply to the notices saying that they had in fact made those payments before the filing of the returns. They also sought inspection of the record for establishing the fact of these payments.
It appears from the record that the Sales Tax Officer was not satisfied with the replies given by the petitioners to the notices issued to them under Section 22 (4) and, in regard to certain amounts said to be due from the petitioners, proceedings for their recovery as arrears of land revenue have been started. But before starting proceedings for the recovery of the amounts as arrears of land revenue, it is necessary for the Sales Tax Officer first to come to a definite conclusion that the amounts now claimed from the petitioners were not in fact paid by them into the treasury. Whether such a conclusion should be reached by the Sales Tax Officer in an enquiry conducted by himself and after hearing the petitioners, or whether it should be based on the result of criminal proceedings suggested in the return is a matter which the Sales Tax Officer should decide for himself in his discretion. But we must say that if, as stated in the return, the petitioners and some other persons are likely to be prosecuted, then it would but be proper to stay the actual recovery of the amount as arrears of land revenue till the final conclusion of those prosecutions.
It must be added that in none of the petitions any specific ground assailing the notices issued to some of the petitioners by the Tahsildar under Section 146 of the Land Revenue Code has been taken and none was urged before us. It is plain from what we have said above that the notices issued to the petitioners under Section 22 (4) cannot be held to be invalid merely because after the issue of those notices the Sales Tax Officer has not yet, after hearing the petitioners arrived at a definite conclusion that they bad not in fact paid into the treasury the amounts now claimed from them.
19. For these reasons, all these applications are dismissed with costs. Counsel's fee in each case is fixed at Rs. 100/-. The outstanding amount of ths security deposit after deduction of costs shall be refunded to the petitioner in each case.