Skip to content


The State of Madhya Pradesh Vs. Ramswarup - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtMadhya Pradesh High Court
Decided On
Case NumberCriminal Appeal No. 558 of 1970
Judge
Reported in1977MPLJ451; [1977]40STC613(MP)
AppellantThe State of Madhya Pradesh
RespondentRamswarup
Appellant AdvocateM.V. Tamaskar, Adv.
Respondent AdvocateB.C. Verma, Adv.
DispositionAppeal dismissed
Cases ReferredState v. Awtar Krishna
Excerpt:
.....the period 21st october, 1960, to 8th november, 1961, was not paid proving beyond doubt that the taxes were not paid without reasonable cause, while the learned counsel for the respondent submitted that even if another view can be taken that the respondent had without reasonable cause failed to pay taxes, still that cannot be a ground for interference in this appeal against acquittal. it is now well-settled that if a statute imposes a liability and creates an effective machinery for deciding the question of law or fact arising in regard to that liability, it may, by necessary implication, bar the maintainability of a civil suit in respect of the said liability. this section does not require that the failure to make the payment must be 'dishonest or mala flde'.all that is needed is that..........)(c) of the m. p. general sales tax act, 1958, for having not paid without reasonable cause the taxes assessed in different years.2. these appeals arise out of criminal cases nos. 83/67 (97/70), 84/67 (96/70), 85/67 (95/70) and 86/67 (94/70) instituted as per orders of the assistant commissioner of sales tax. it is not in dispute that the respondent was a registered dealer under the m. p. general sales tax act, 1958 and also under the central sales tax act, 1956. the four cases are for not paying taxes as per four assessment orders for different periods ranging from 1st november, 1959, to 8th november, 1961. in case no. 83/67 as per assessment order dated 24th november, 1964, the respondent was assessed to tax of rs. 3,193.26 for the period 21st october, 1960, to 8th november, 1961......
Judgment:

C.P. Sen, J.

1. By this judgment the connected Criminal Appeals Nos. 559, 560 and 561 of 1970 are also disposed of as all these appeals arise out of a common judgment. The State has preferred these appeals against the acquittal of the respondent for the offence under Section 46(1 )(c) of the M. P. General Sales Tax Act, 1958, for having not paid without reasonable cause the taxes assessed in different years.

2. These appeals arise out of Criminal Cases Nos. 83/67 (97/70), 84/67 (96/70), 85/67 (95/70) and 86/67 (94/70) instituted as per orders of the Assistant Commissioner of Sales Tax. It is not in dispute that the respondent was a registered dealer under the M. P. General Sales Tax Act, 1958 and also under the Central Sales Tax Act, 1956. The four cases are for not paying taxes as per four assessment orders for different periods ranging from 1st November, 1959, to 8th November, 1961. In Case No. 83/67 as per assessment order dated 24th November, 1964, the respondent was assessed to tax of Rs. 3,193.26 for the period 21st October, 1960, to 8th November, 1961. In Case No. 84/67 as per assessment order dated 2nd September, 1964, the respondent was assessed to tax of Rs. 836.25 for the period 1st November, 1959, to 20th October, 1960. In Case No. 85/67 as per assessment order dated 2nd September, 1964, the respondent was assessed to tax of Rs. 131.36 for the period 1st November, 1959, to 20th October, 1960. In Case No. 86/67 as per assessment order dated 24th November, 1964, the respondent was assessed to tax of Rs. 10 for the period 21st October, 1960, to 8th November, 1961. In all these cases, the respondent was served with demand notice to pay the taxes assessed within 30 days of the receipt of the notice. It is also not in dispute that the respondent neither preferred any appeal nor he has paid the taxes as demanded. Therefore, these four challans were filed as per orders of the Assistant Commissioner of Sales Tax under Section 46(l)(c) of the M. P. General Sales Tax Act for the respondent having without reasonable cause failed to pay the taxes. The respondent abjured his guilt and submitted that his house valued at more than 1 lac rupees was attached and he was served with a prohibitory order dated 20th November, 1963, for recovery of taxes amounting to Rs. 2,973.06 towards earlier assessments, restraining him from alienating the property and thereby he was prevented from raising funds for payment of taxes and, as such, there was reasonable cause for not paying the taxes. The respondent further contended that he was not liable for assessment to tax as he was dealing with tax-free goods, some of the sales were in the course of inter-State sales, the respondent was merely a commission agent, the transactions were on behalf of his principals and he could not be assessed for those transactions and the respondent was given instalments to clear off his dues. The respondent did not give any evidence in his defence. The learned trial Magistrate, on consideration of the evidence on record, negatived the contentions of the respondent regarding the validity of the assessment orders holding that the said orders could not be challenged in these prosecutions and should have been challenged before the appropriate forums constituted under the Act and the respondent has also not given any evidence to show how the assessments were invalid. However, the trial Magistrate gave the benefit of doubt to the respondent saying that it could not be said that non-payment of taxes were without reasonable cause, as the valuable house of the respondent was under attachment by the sales tax authorities and he was prevented from alienating his property. There was nothing on record to show that besides this attached property, the respondent was in a position to clear off the taxes.

3. The only question for consideration is whether it could be said that the respondent without reasonable cause failed to pay the taxes within the time allowed. The learned counsel for the State submitted that even the tax of Rs. 10 assessed for the period 21st October, 1960, to 8th November, 1961, was not paid proving beyond doubt that the taxes were not paid without reasonable cause, while the learned counsel for the respondent submitted that even if another view can be taken that the respondent had without reasonable cause failed to pay taxes, still that cannot be a ground for interference in this appeal against acquittal.

4. First of all, it is necessary to consider whether it is open to the criminal court to go beyond the orders of assessment passed against the respondent by the sales tax authorities. Section 37 of the Act provides that save as provided in Section 44, no assessment order or the determination or liability to pay any tax or penalty or the recovery of any tax or penalty made under this Act or the Rules made thereunder by the Commissioner or any person appointed under Section 3 to assist him shall be called into question in any civil court and save as provided in Sections 38 and 39, no appeal or application for revision shall lie against any such assessment or order. It is now well-settled that if a statute Imposes a liability and creates an effective machinery for deciding the question of law or fact arising in regard to that liability, it may, by necessary implication, bar the maintainability of a civil suit in respect of the said liability. A statute may also confer exclusive jurisdiction on the authorities constituting the said machinery to decide finally a jurisdictional fact thereby excluding by necessary implication the jurisdiction of a civil court in that regard. But an authority created by a statute cannot question the vires of that statute or any of the provisions thereof whereunder it functions. It must act under the Act and not outside it. If it acts on the provisions of the Act which is ultra vires,'to that extent it would be acting outside the Act. In that event, a suit to question the validity of such an order made outside the Act would certainly lie in a civil court (B. K. Bhandar v. Dhamangaon Municipality [1966] 59 I.T.R. 73 (S.C.) and Venkataraman & Co. v. State of Madras 60 I.T.R. 112 (S.C.). It is, therefore, evident that the criminal courts are precluded from going into the question of validity of assessment orders which could only be questioned by way of appeal or revision provided under the Act to the authorities concerned. Of course, it is open to the criminal court to consider as to whether the provisions under which the assessment has been made are ultra vires or not. In view of this clear position it is not open to this court to go into the questions whether the assessments were validly made and as to whether the respondent was properly assessed or not. A Full Bench of the Madras High Court in Public Prosecutor v. Ramalingan A.I.R. 1958 Mad. 544(F.B.) has held:

Thus when a person is prosecuted under Section 16-A of the General Sales Tax Act it will not be open to him to raise any objection, plea or contention which he could have raised before the authorities set up under the General Sales Tax Act; it will be open to him to raise only those pleas, objections and contentions which those authorities are precluded from entertaining.

Following this decision, a Full Bench of the Andhra Pradesh High Court in Public Prosecutor v. Thimmaiah A.I.R. 1959 A.P. 207 (F.B.) has further held that the purpose of Section 15(b) is to enforce payment through the agency of criminal courts and deter non-payment of tax. Thus, what is entrusted to the criminal court is merely the function of collecting it. In this case the decision of the Supreme Court in Poppatlal Shah v. State of Madras A.I.R. 1953 S.C. 274 was distinguished as that case was with regard to a transaction which took place prior to the amendment introduced by Act No. 25 of 1947. Under the circumstances, the various contentions raised by the respondent about the validity of the assessment orders cannot be looked into. This apart, It appears from the copies of the assessment orders that all these contentions were considered by the assessing authorities and were either negatived or allowed. Necessary reliefs have been given to the respondent. The respondent has also not shown as to how these assessment orders are ultra vires. The Supreme Court in Kamala Mills v. Bombay State 57 I.T.R. 643 (S.C.) has held that if the appropriate authority while exercising its jurisdiction and powers under the relevant provisions of the Act holds erroneously that a transaction, which is an outside sale, is not an outside sale and proceeds to levy sales tax on it, the decision of the appropriate authority cannot be said to be without jurisdiction.

5. Now it remains to be seen whether the respondent has contravened Section 46(l)(c) of the Act, which is as under :

Whoever without reasonable cause fails to pay the tax due within the time allowed, shall, without prejudice to the recovery of any tax that may be due from him, be punishable with simple imprisonment which may extend to six months or a fine not exceeding one thousand rupees or with both and when the offence is a continuing offence, with a further fine not exceeding fifty rupees for every day the offence continues.

The offence is committed if a dealer without reasonable cause fails to pay the tax due within the time allowed. The Supreme Court in Nathulal v. State of M. P. A.I.R. 1966 S.C. 43 has held that mens rea is an essential ingredient of a criminal offence. A statute may exclude the element of mens rea; it is, however, a sound rule of construction which is adopted in England and also accepted in India, to construe a provision which creates an offence in conformity with the common law rather than against it except where the statute expressly or by necessary implication excludes mens rea. In the M. P. General Sales Tax Act, mens rea has not been excluded expressly or by necessary implication. While considering a case under the Central Sales Tax Act, K. K. Mathew, J. (as he then was), in P.K. Varghese v. Sales Tax Officer [1965] 16 S.T.C. 323 has held that mens rea is an essential ingredient in commission of offence under Section 10(b) of the Act. This is also the view of this court in Sales Tax Commissioner v. Bombay General Stores A.I.R. 1969 M.P. 213, that in the absence of mens rea a dealer cannot be penalised for contravention of Section 10(b) of the Central Sales Tax Act. Reasonable cause has not been defined under the Act. Dictionary meaning of 'reasonable' is that which is agreeable to reason, not absurd, within the limits of reason. The expression 'reasonable' therefore means rational, according to the dictates of reason and not excessive or immoderate. An act is reasonable when it is confirmable or agreeable to reason having regard to the facts of the particular case. V. Bhargava, J. (as he then was), sitting in a Division Bench in State v. Awtar Krishna A I.R. 1957 All. 88 has interpreted a similar Section 14(b) of the U. P. Sales Tax Act and has held :

Under Section 14(b) an offence is committed whenever any person wilfully fails to pay the tax due from him under that Act within the time allowed. This section does not require that the failure to make the payment must be 'dishonest or mala flde'. All that is needed is that the failure must mean not an unintentional failure or a failure by inadvertence but a deliberate failure, where the mind has been brought into play and a man has, after taking the facts into consideration, refused to make the payment.

Therefore, to make the respondent liable it has to be seen whether he deliberately failed to pay the taxes. Th3 attachment and prohibitory order dated 20th November, 1963, is on record and as per this order the house of the respondent was attached and he was restrained from alienating the same. This was towards the tax amounting to Rs. 2,973.06 for the previous assessment years. The respondent also contended that the attached property was also being put to auction. According to the respondent this attached property is more than worth Rs. 1 lac. So even after the subsequent assessments and the demand notices served on the respondent, he could reasonably think that the taxes assessed on him would be recovered by attachment and sale of his property and he, therefore, did not care to pay the taxes. It is true that for the period 20th October, 1960, to 8th November, 1961, the respondent was assessed to tax of Rs. 10 only, but this cannot be taken in isolation. In these four cases his total tax liability comes to Rs. 4,170.87 and besides there is the earlier liability of Rs. 2,973.06. So the respondent could not have saved himself by paying Rs. 10 only. There is also no evidence on record to show that the respondent was in a position to clear off the taxes and that he had other means, besides the attached property, to pay the tax dues. On the other hand, the respondent, in his written argument submitted before the trial Magistrate, pointed out that these assessments have been made after the respondent has been financially ruined, having suffered heavy losses. The loss during the Diwali years 1958, 1959 and 1960 was Rs. 2. lacs and in support thereof he had filed certified copy of one income-tax order for the Diwali year 1960. So instead of rushing to prosecute the respondent in these cases, the sales tax authorities should have proceeded with recovery of taxes by sale of the attached property. The view taken by the learned trial Magistrate is quite reasonable and even if another view is possible that cannot be a ground for interference in these appeals against acquittal.

6. The appeals, therefore, fail and they are dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //