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The Swadeshi Cotton and Flour Mills Ltd. Vs. T.S. Paraskar and anr. - Court Judgment

LegalCrystal Citation
SubjectOther Taxes
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 123 of 1967
Judge
Reported inAIR1971MP177; 1971MPLJ338
ActsConstitution of India - Articles 366(10) and 372; Indore Tax Rules, 1927
AppellantThe Swadeshi Cotton and Flour Mills Ltd.
RespondentT.S. Paraskar and anr.
Appellant AdvocateG.M. Chaphekar and ;P.D. Pathak, Advs.
Respondent AdvocateK.K. Dube, Govt. Adv.
DispositionPetition allowed
Cases ReferredMadhaorao Phalke v. State of Madhya Bharat
Excerpt:
- - it has also been contended that the levy of interest is bad and illegal on the ground that no notice was given to the petitioners to show cause why interest should not be levied and no opportunity was given to them to be heard on this question and the order levying interest was made without affording them any opportunity of being heard. though theorists may not find it easy to define a law as distinguished from executive orders, the main features and characteristics of law are well recognized. this legal position has clearly been discussed by their lordships in paragraphs 56 and 57 of their judgment in the case of air 1964 sc 1043. 17. in the case of air 1961 sc 298, madhaorao phalke v. ' it is clear from the above discussion that madhaorao phalke's case, air 1961 sc 298 (supra).....bhargava, j.1. this order shall govern the disposal of m. p. nos. 12/67, 17/67, 18/67, 619/66 and 620/66 also.2. the petitioners in these petitions are incorporated companies owning textile mills at indore wherein the petitioners carry on the business of manufacture of cotton-textile goods. by these petitions the petitioners have challenged the orders passed by the first respondent shri t. s. paraskar who has been appointed the assessing officer under the indore industrial tax rules, 1927, and the indore excess profits duty order, 1944. by the orders impugned in these petitions, the petitioners were held liable to pay interest on the arrears of industrial tax and excess profits duty and have been called upon to pay the said amount.3. feeling aggrieved, the petitioners have filed these.....
Judgment:

Bhargava, J.

1. This order shall govern the disposal of M. P. Nos. 12/67, 17/67, 18/67, 619/66 and 620/66 also.

2. The petitioners in these petitions are incorporated companies owning textile mills at Indore wherein the petitioners carry on the business of manufacture of cotton-textile goods. By these petitions the petitioners have challenged the orders passed by the first respondent Shri T. S. Paraskar who has been appointed the Assessing Officer under the Indore Industrial Tax Rules, 1927, and the Indore Excess Profits Duty Order, 1944. By the Orders Impugned in these petitions, the petitioners were held liable to pay Interest on the arrears of industrial tax and excess profits duty and have been called upon to pay the said amount.

3. Feeling aggrieved, the petitioners have filed these petitions under Articles 226 and 227 of the Constitution praying for the issue of a writ of certiorari for quashing the impugned orders and for restraining the State Government-from recovering interest from the petitioners.

4. In the year 1927, the Government of His Highness Maharaja Holkar promulgated rules known as 'Indore Industrial Tax Rules, 1927.' The said rules were duly published in the Holkar Government Gazette. The rules, inter alia, provided for the levy of industrial tax in respect of profits or gains of the cotton mills industry carried on by any assessee in the Holkar State. Rule 18 of the said rules conferred powers on the Government to amend the said rules and such amendments were to be effective after their publication in the Holkar Government Gazette. In exercise of the said powers the said rules were amended from time to time and lastly in the year 1949 when extensive amendments were made in the said rules. In the year 1944, the Government of the quondam Holkar State promulgated another law called 'the Indore Excess Profits Duty Order, 1944.' It was published in the Holkar Government Gazette dated 18-9-1944, Part I. Under the said order which applied to all industrial concerns carrying on business in the year 1943 and subsequent thereto during the continuance of the war and one year after the termination thereof, a duty called 'excess profits duty' was levied on the amount of profits which exceeded Rs. 75,000/- in respect of any business carried on by an industrial concern in the Holkar State. This order also was amended from time to time by the Holkar State Government.

5. According to the scheme for the levy of excess profits duty a deduction of 50% on account of excess profits duty was to be made from the balance of profits of every industrial concern that remained after deducting from its annual profits the industrial tax payable by the said concern under the Indore Industrial Tax Rules, 1927, and a further sum of Rs. 75,000/-. Out of this deduction of 50% on account of ex-ces profits duty, 15% was to be retainedby the State for its general development and welfare, 25% was to be suitably invested in consultation with the assessee concerned for being returned to the assessee with interest thereon for the extension, development or improvement of the existing industries in the State, and the remaining 10% was to remain frozen and invested in the same manner for the period of the war and was to be returned immediately thereafter with interest accrued thereon to the assessee concerned unconditionally. With the end of the war, the excess profits duty was abolished with effect from 1-4-1946.

6. Admittedly, the petitioners, being industrial concerns and textile mill owners, were liable to pay the industrial tax as also the excess profits duty. The petitioners submitted their returns according to the requirement of the Indore Industrial Tax Rules, 1927, for the years 1940 to 1948. The petitioners also paid the industrial tax and the excess profits duty due from them. Details about the submissions of these returns, the payment of taxes and duties and the effects of the assessments and appeals therefrom have been set out in the petitions, but it is unnecessary for purposes of these petitions to go into all those details. It is sufficient to point out that in the first instance provisional assessments were made and after scrutiny of the accounts, final assessments were made as provided by the Indore Industrial Tax Rules, 1927. The petitioners filed appeals against the final assessment to the appellate authority under the Indore Industrial Tax Rules. On these appeals certain reliefs were granted to the petitioners. Second appeals were preferred by the petitioners to the High Court under Rule 13 of the Indore Industrial Tax Rules as amended in 1949. The petitioners got some more relief in these appeals.

7. After the decisions of the successive appeals, the tax liabililty was modified in the light of the appellate decisions and even refunds were made when the tax liability was reduced on appeals. In respect of some of the petitioners i. e., the petitioners in M. P. No, 12/67 (Nandlal Bhandari Mills Ltd.), M. P. No. 18/67 (Kalyanmal Mills Ltd.) and M. P. No. 123/67 (The Swadeshi Cotton and Flour Mills Ltd.) the assessments for all the years have been completed and refunds of the excess tax have been made so that no proceedings are pending in respect of these petitioners. In respect of the petitioners in the other three cases, assessments for some of the years have been finally completed and refunds made while assessments of a few years have still to be completed in the light of the ordersmade by the High Court. In the case of the petitioner the Indore Malwa United Mills Ltd. (M. P. No. 620/66) the petitioner got further relief in the Supreme Court and the assessment in the light of the orders made by the Supreme Court is yet to be completed.

8. With the end of the war, 10% of the deduction on account of the excess profits duty was refunded to the petitioners but the remaining 25% which was also to be refunded to the petitioners was not refunded to them. The petitioners therefore pressed their demand for the said refund. The respondent No. 1 who was appointed the Assessing Authority to complete the pending assessment of industrial tax and excess profits duty served the impugned orders on the petitioners holding them liable for payment of interest on the delayed payment of industrial tax and after adjusting the refundable portions of the excess profits duty to the petitioners against this demand for interest, the first respondent called upon the petitioners to pay the balance. The impugned order of the first respondent in this case has been annexed as annexure A to the petition. Similar orders have been passed in all the cases and have been filed with the petitions. The first respondent held that the petitioners had defaulted in regular payments of industrial tax and excess profits duty and were liable to pay interest for such delayed payments. For holding the petitioners liable to pay interest on the dues of industrial tax, the first respondent relied upon Huzur Shree Shankar Order No. 158 dated 5-5-1932. The said order was passed by His Highness Maharaja Holkar who was an absolute Sovereign. It may be stated here that there is admittedly no provision for payment of interest on the delayed payment of the industrial tax in the Indore Industrial Tax Rules, 1927. The claim for interest is wholly based upon the Huzur Shree Shankar Order No. 158 dated 5-5-1932 which according to the respondents is an independent law in itself. The said order has been filed in this case (M. P. No. 123/67) and has been annexed to the return as R/1. It appears to have been passed by His Highness Maharaia Holkar while considering the audit objection raised by the Accountant General pertaining to the inspection of accounts of the Inspector's Office of the State Mills of which Mr. Bhandari was a lessee. The relevant text of the order is as follows:--

'His Highness the Maharaja is pleased to order that:-- Mr. Bhandari should be charged interest (excluding the period of grace) of 6% per annum on the balance of the Industrial Tax the full payment of whichwas not made till the second week of April 1930 and which should have been paid before the 30th September 1929. It is also laid down for future guidance in such cases that in the event of an assessee finding it necessary to delay payments, he should at once address the Member for Commerce and Industries, giving the reasons for the delay and the member should place the matter before the Government for orders. If an assessee neglects to take this course and neglects also to pay the tax within one month of the date it falls due, he shall be charged interest on the amount due at 6% per annum; if sufficient reason is not forthcoming for the delay, interest should be charged even for the grace period of one month, except for the first week which should be free from interest whether satisfactory reason for the delay is given or not.'

9. The contention of the petitioners in all the cases is that the said Huzur Shree Shankar Order cannot be treated as a law authorizing the charging of interest on the arrears of industrial tax and therefore the levy of interest based upon the said order is with-out the authority of law and therefore wholly void and ineffective. It has further been urged that the first respondent had been appointed only to complete the pending proceedings. He therefore had no jurisdiction to start fresh proceedings for the levy of interest and therefore his order levying interest is without jurisdiction and void. It has also been contended that the levy of interest is bad and illegal on the ground that no notice was given to the petitioners to show cause why interest should not be levied and no opportunity was given to them to be heard on this question and the order levying interest was made without affording them any opportunity of being heard. It is therefore urged that the said order violates the principles of natural justice. On the merits it has been contended that the levy of interest is also not justified because interest had been charged not on the amount of tax as finally determined in appeal but on the amount as originally assessed even though the said assessments were modified on appeals and the amount of tax was reduced. It has also been contended that even in respect of those years which were ultimately accepted to be loss years interest has been charged upon the industrial tax as originally assessed though ultimately it was accepted that no tax was payable in respect of those years. It has also been urged that levy of interest has been made even in respect of those payments of tax for which the Government had granted the facility of payment by in-stalments. It was also urged that the first respondent adopted double standard in the matter of interest. On the amounts which became due to the petitioners interest was paid at the rate of Rs. 2/10/- per cent. whereas on the amounts claimed from them interest is being demanded at the rate of 6%.

10. On the other hand, the respondents in their return have urged that His Highness Maharaja Holkar being an absolute Sovereign, every order passed by him had the effect of law and accordingly the said Huzur Shree Shankar Order No. 158 dated 5-5-1932 was also a valid law. It has further been urged that the first respondent had jurisdiction to start fresh proceedings for the levy of interest and his order is within jurisdiction. It has been urged in respect of the contention that no notice or hearing was given to the petitioners before passing the impugned order pertaining to the recovery of interest that no such notice or hearing was necessary as the order Itself was tentative and purported to invite objections from the petitioners if they wanted to raise any. The respondents have also tried to justify the charging of interest on merits.

11. We will first examine the question as to whether the demand for interest for belated payments of the industrial tax is justified by any authority of law. The contention of the learned Government Advocate is that the aforesaid Huzur Shree Shankar Order dated 5-5-1932 is a valid law and constitutes sufficient basis for justifying the said demand. It is urged that the Ruler of Holkar State was an absolute monarch and full sovereignty vested in him. As such absolute monarch he was endowed with full legislative, judicial and executive powers and authority and whatever order he passed amounted to law. It is contended that in the case of an absolute sovereign whose word is literally law, it is futile to distinguish between binding orders which are administrative or executive from the binding orders which are legislative. The learned Government Advocate relies on the view taken in Ameer-un-Nissa Begum v. Mahboob Begum, AIR 1955 SC 352 and Director of Endowments, Govt. of Hyderabad v. Akram Ali, AIR 1956 SC 60. He has further contended that merely on account of the fact that the said order dated 5-5-1932 was not published in the Holkar State Gazette or in any other manner, it cannot be treated to be an administrative or executive order. In this connection, the learned counsel referred to paragraph 14 of the judgment of their Lordships in Madhao-rao Phalke v. State of Madhya Bharat, AIR 1961 SC 298. It has also been urgedthat mere form of the order is not a decisive test and the direction in the order that interest was to be charged at the rate specified in the said order made it a compulsory rule of conduct which had to be followed and therefore the said order is a valid law.

12. We may first examine the validity of the contention advanced by the learned Government Advocate to the effect that as the order dated 5-5-1932 emanated from the Ruler, in the ultimate analysis it is law and there is no distinction between binding orders issued by the ruler which are legislative and other binding orders which are administrative. The case of AIR 1955 SC 352 & AIR 1956 SC 60 on which reliance has been placed by the learned Government Advocate, were fully discussed by their Lordships in their decision in Narsing Pratap Singh Deo v. The State of Orissa, AIR 1964 SC 1793. Their Lordships observed in para 7 of their, judgment,

'It is true that the legislative, executive and judicial powers are all vested in an absolute monarch; he is the source or fountain of all these powers and any order made by him would be binding within the territory under his rule without examining the question as to whether it is legislative, executive or judicial; but though all the three powers are vested in the same individual, that does not obliterate the difference in the character of those powers. The jurisprudential distinction between the legislative and the executive powers still remains, though for practical purposes, an examination about the character of these orders may serve no useful purpose. It is not as if where absolute monarchs have sway in their kingdoms, the basic principles of jurisprudence which distinguish between the three categories of powers are inapplicable. A careful examination of the orders passed by an absolute monarch would disclose to a jurist whether the power exercised in a given case by issuing a given order is judicial, legislative or executive, and the conclusion reached on jurisprudential grounds about the nature of the order and the source of power on which it is based would nevertheless be true and correct.'

In paragraph 8 of the judgment it was further observed:

'Though theorists may not find it easy to define a law as distinguished from executive orders, the main features and characteristics of law are well recognized. Stated broadly, a law generally is a body of rules which have been laid down for determining legal rights and legal obligations which are recognized by courts.'

The observations made by their Lordships in paragraphs 9 and 10 of the judgment go to show that in Ammer-un-Nissa Begum's case, AIR 1955 SC 352 and in the case of Director of Endowments, AIR 1956 SC 60 (supra) the distinction between the legislative and the executive functions of the absolute sovereign was not argued and therefore it was not considered as to whether it would be possible or useful to draw a line of demarcation between 'Firman' which is legislative and that which 5s executive. Their Lordships held that the observations made in Ameer-un-Nissa Begum's case were not intended to lay down a broad or general proposition of law. In para 15 of the judgment their Lordships stressed that-

'The true legal position is that whenever a dispute arises as to whether an order passed by an absolute monarch represents a. legislative act and continues to remain operative by virtue of Clause 4 (b) of the Order, all relevant factors must be considered before the question is answered; the nature of the order, the scope and effect of its provisions, its general setting and context, the method adopted by the Ruler in promulgating legislative as distinguished from executive orders: these and other allied matters will have to be examined before the character of the order is judicially determined .....'

The same principles have been reiterated by the Supreme Court in Bengal Nagpur Cotton Mills Ltd. v. Board of Revenue, Madhya Pradesh, AIR 1964 SC 888 and State of Gujarat v. Vora Fiddali, AIR 1964 SC 1043.

13. It is clear from the contents of the order itself that there was no proposal to enact any law in respect of delayed payments before the Ruler but the orders of the Ruler were invited on a matter of purely executive nature. The order was made keeping in view one particular case of Mr. Bhandari. The said order cannot be said to have been passed as an Act of legislation by the Ruler. The making of law essentially means the exercise of discretion by the competent legislative authority of the State to enact a law. The order in question has not the 'trappings' of a law. It was not published in the Holkar Government Gazette nor was it made known to the assessees in any other manner. If the said order had been made with the object or purpose of supplementing or amending the Industrial Tax Rules, 1927, it would have been published in the gazette as required by Rule 18 of the said Rules. Rule 18 provides that 'Rules made by the Government shall be published in the Holkar GovernmentGazette and thereafter shall have the force of law.'

14. There was a generally established method of enactment of laws in the Holkar State. When the laws were enacted there, they had also a distinct form. It is significant to note that the order in question is neither in conformity with that method nor accords with the form. In AIR 1964 SC 888 their Lordships observed:

'A law must follow the customary forms of law-making and must be expressed as a binding rule of conduct. There is generally an established method for the enactment of laws, and the laws, when enacted, have also a distinct form. It is not every indication of the will of the Ruler, however expressed, which amounts to a law. An indication of the will meant to bind as a rule of conduct and enacted with some formality either traditional or specially devised for the occasion results in a law.....'

15. We may point out at this stage that if the Government of Maharaja Holkar desired to recover interest on the delayed payments of the industrial tax it was not even necessary for Maharaja Holkar to enact the law. Interest could be recovered even by an executive order as the said order would have been binding on all concerned. So long as the Supreme legislative, judicial and executive powers vested in him, even his executive order could not be challenged in anyway. But it is pertinent to note that no demand was ever made for payment of interest on belated payments of industrial tax during the time that the Holkar State existed.

16. The question before us is not as to what legal effect may have been given to the order if on the basis of the said order demand for interest had been made at the time when the Holkar State was in existence. The question is as to whether the said order can be projected and held operative for a period subsequent to the coming into force of the Constitution. In other words, the question before us is as to whether the said order satisfies the test of being 'existing law' which was continued within the meaning of Article 372 of the Constitution. This question gains importance because in case of absolute monarchs the distinction between the administrative action under their executive and of laws passed by them as a supreme legislature has no difference as regards their effectiveness. Still the distinction between the two is of vital importance for the purpose of determining their continued efficacy after the coming into force of the Constitution. Under Article 372 of the Constitution, 'All the law in force in the territory of India immediately before thecommencement of this Constitution shall continue in force therein until repealed or amended by a competent legislature or other competent authority.' The expression 'existing law' has been defined in Article 366(10) thus:

'Existing law means any Law, Ordinance, Order, bye-law, rule or regulation passed or made before the commencement of this Constitution by any Legislature, authority or person having power to make such a law, Ordinance, Order, bye-law, rule or regulation.'

The said definition does not include administrative orders which are traceable not to any law made by the legislature but derive their force from executive authority. What survives the Constitution and is continued by Article 372 are the laws which could trace their origin to the exercise of legislative power. This legal position has clearly been discussed by their Lordships in paragraphs 56 and 57 of their judgment in the case of AIR 1964 SC 1043.

17. In the case of AIR 1961 SC 298, Madhaorao Phalke v. State of Madhya Bharat the contention before their Lordships was that the Kalambandis in question were not published in the Gazette as other laws are; they were published only in the Military Gazette and they are not called quanun or laws as they would have been, if they were intended to operate as laws. Their Lordships discussed in paragraph 14 of the judgment the practice which was in vogue in Gwalior State for enactment and promulgation of laws. On consideration of those practices their Lordships observed that merely because the Kalambandi was not described as a quanun or was not published in the Government Gazette, it could not be treated to be an executive order. Their Lordships held that the words used in describing the several orders issued by the Ruler of the Gwalior State did not afford material assistance in determining their character. Their Lordships examined in detail the character of orders contained in these Kalambandis in paragraph 15 of their judgment. They held that the Kalambandis recognized and conferred hereditary rights, provided for the adoption of a son by the widow of a deceased Sille-dar subject to the approval of the State. They also provided for the maintenance of widows out of funds specially set apart for that purpose and made detailed provisions about mutation of names after the death of a Silledar. On consideration, of these and the other important matters discussed in paragraph 15, their Lordships expressed the view that the Kalambandis were unambiguously impressed upon with the character of a statute or a regulation having the forceof a statute. In the last portion of paragraph 15 it was observed:

'It would thus be seen that the detailed provisions made by this Kalambandi deal with several aspects of the amount payable to the recipient, and considered as a whole it cannot be treated as an administrative order issued merely for the purpose of regulating the working of the administration of the department of irregular forces.'

It is clear from the above discussion that Madhaorao Phalke's case, AIR 1961 SC 298 (supra) stood on an entirely different footing and is clearly distinguishable. Though the Kalambandis were not published in the Gwalior Government Gazette, they were published in the Military Gazette and therefore it could not be urged that the provisions made in the Kalambandis were not brought to the notice of those who might be affected by them. In the instant case, it is an admitted fact that the order dated 5-5-1932 was not published in the Government Gazette nor was it brought to the notice of the assessees in any other manner. It is further significant that the Industrial Tax Rules, 1927, themselves contemplate publication of the rules to be enacted in future for being given the force of law. Even assuming that for enacting a valid law it was not necessary that it must be published in the Holkar State Gazette yet it cannot be denied that the Ruler could choose to say that any order made by him would have the effect of law only when it was so published. It was so said in Rule 18 of the Industrial Tax Rules, 1927, which is a law and compliance of the said rule would be necessary to enact any binding rule unless the said rule had been suitably amended or repealed subsequently. We are therefore of the view that the aforesaid observations made by their Lordships in Madhaorao Phalke's case, AIR 1961 SC 298 (supra) do not help the respondents.

18. Applying the principles enunciated by their Lordships in the cases, referred to above and considering the circumstances in which the order dated 5-5-1932 was passed, we are firmly of the view that it is not a law in the sense in which that expression is used in Article 372 of the Constitution. The nature, quality, content and the scope of the order and effect of its provisions, its general setting and context, its form and the method adopted for getting the order passed by the Ruler leads to the inevitable conclusion that it cannot be held to be a binding rule of conduct amounting to law. In this view, we hold that the demand of interest on the delayed payment of industrial tax is not supported by any authority of law.

19. The next question which is required to be considered is that the first respondent was appointed the assessing officer for industrial tax and excess profits duty in regard to pending assessment and therefore he had no jurisdiction, to make the order for recovery of interest as the assessments were already completed and were not pending. This contention is based upon the fact that the Industrial Tax Rules and the Excess Profits Duty Order which were laws relating to income-tax or tax on profits in business which were in force in the Part 'B' State of Madhya Bharat were repealed by Section 13 of the Finance Act, 1950 (1 of 1950) except for the purposes of the levy, assessment and collection of the tax in respect of the periods not included in the previous year for the purpose of assessment under the Income-tax Act and these proceedings could be continued and completed. Proviso to the said Section 13 states that the officers to make these assessments would be officers under the Indian Income-tax Act.

20. In spite of the said provision, the pending assessments in Madhya Bharat under the Industrial Tax Rules and the Excess Profits Duty Order were continued by the officers appointed under the said Act even alter the coming into force of the Indian Finance Act, 1950. The question of validity of these proceedings having been raised, the Parliament in the year 1954 passed the Madhya Bharat Taxes on Income (Validation) Act, 1954 (Act 38 of 1954) by which the proceedings taken by the officers appointed under the said State Act were not only validated but by Section 4 of the Act for continuance of the proceedings it was provided:--

'If immediately before the commencement of this Act, any proceedings of the nature referred to in Section 3 are pending before any officer, authority, tribunal or court acting or purporting to act under the relevant Madhya Bharat Law, such proceedings may, notwithstanding anything contained in the first proviso to Sub-section (1) of Section 13 of the Finance Act, be continued and completed in accordance with the provisions of the relevant Madhya Bharat Law, and the provisions of the said proviso shall not apply, and shall be deemed never to have applied, in relation to any such proceedings.'

21. On the basis of this provision, the contention advanced on behalf of the petitioners is that the officers appointed under the State Acts were only authorized to complete the pending assessments but once the assessments werecompleted, these officers had no jurisdiction to initiate fresh proceedings as such proceedings would be hit by the provisions of Section 13 (1) and the proviso thereto of the Finance Act, 1950.

22. It is common ground that the assessments in these cases were completed, but the cases were remanded to the assessing officer for trial and disposal subject to the directions given by the High Court. In the case of the Indore Malwa United Mills Ltd. (M. P. No. 620 of 1966) the matter is pending before respondent No. 1 in pursuance of the directions which were given by the Supreme Court in Civil Appeals 183 to 197 of 1964 and to come to a conclusion in regard to the question of unaccounted yarn after considering the material which was already on record and after other relevant evidence was produced before him. Thus, the cases were pending before the first respondent for deciding specific matters according to the directions of the High Court and the Supreme Court. The cases could not be reopened on consideration of the plain language employed in Section 4. As we have already taken the view that the demand for interest is not based on any authority of law, this point need not be pursued further.

23. Another contention raised is that the first respondent was bound to issue a notice to the petitioners to show cause why interest should not be charged and he should have afforded them an opportunity of presenting their case but that opportunity was not given and the order for payment of interest has been made against the petitioners. It is admitted in the return that no such notice or hearing was given to the petitioners before passing the impugned order. However, it was stated that the said order is tentative and by the said order the first respondent purported to invite objections from the petitioners if they wanted to raise any. On a perusal of the order annexure-I, we are satisfied that it is not a tentative order. The order clearly shows that the first respondent held that the petitioners had defaulted in regular payments of industrial tax and thus were liable to pay interest at the rate of 6%. Calculating interest at that rate and taking into consideration the refundable excess profits duty, he worked out the final figures for which the demand was made against each one of the petitioners in the impugned orders. The functions to be discharged by the first respondent were of a quasi judicial nature and therefore it was necessary for him to give an opportunity to the petitioners to show cause as to why they were not liableto pay interest as claimed. The first respondent has clearly violated the rules of natural justice in making the order to the prejudice of the petitioners without hearing them or in any event without affording them a fair and reasonable opportunity of showing cause against the proposed order. On this ground also the impugned order deserves to be quashed.

24. In the view that we have taken, it is not necessary for us to consider in detail the other objections raised on behalf of the petitioners in respect of the calculation, quantification and the alleged discriminatory and unjust rates of interest demanded from them for delayed payment of industrial tax. However, to complete the record we may briefly observe that in any case no valid or legal demand for interest could be made before the final assessment of tax was completed, no interest could be demanded on those amounts of tax which were reduced or knocked down in the appeals and no interest could be demanded when the year of assessment itself was finally held to be a loss year. We are told that in the case of all petitioners, years 1940, 1946, 1947 and 1948 were the years of loss and in the case of the Indore Malwa United Mills Ltd. (M. P. No. 620 of 1966) the Supreme Court held in appeal the year 1941 to be a year of loss. Payment of interest to the petitioners on the amounts found due in their favour at the rate of Rs. 2/10/- per cent per annum and demanding interest from them at a much higher rate of 6% per annum is on the face of it unsupportable and unjust.

25. In the result, all these writ petitions are allowed with costs. We quash the impugned orders, annexure A dated 13-12-1966 in M. P. No. 123/67, annexure B dated 26-11-1966 in M. P. No. 12/67, annexure A dated 3-11-1966 in M. P. No, 17/67, annexure A dated 21-12-1966 in M. P. No. 18/67, annexure B dated 1-11-1966 in M. P. No. 619/66 and annexure 10 dated 31-10-1966 in M. P. No. 620/66 as being wholly without jurisdiction. We further issue a writ in the nature of mandamus directing the respondents to refrain from enforcing the said demand of payment of interest against the petitioners. The case is sent back to the first respondent for making appropriate orders according to law. We fix the counsel's fee at Rs. 200/-, in each case. The security amount shall be refunded to the petitioners.


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