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Jiwajirao Sugar Company Ltd. Vs. State of Madhya Pradesh and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtMadhya Pradesh High Court
Decided On
Case NumberMiscellaneous Petition No. 636 of 1983
Judge
Reported in[1985]59STC273(MP)
AppellantJiwajirao Sugar Company Ltd.
RespondentState of Madhya Pradesh and anr.
Appellant AdvocateA.K. Chitale, Adv.
Respondent AdvocateS.R. Joshi, Government Adv.
DispositionPetition dismissed
Excerpt:
.....but is due from the petitioner on account of the admitted non-compliance by the petitioner with the provisions of the act requiring the petitioner to pay the tax before filing the returns. in such circumstances, the recital in the notices that the amount of tax referred to therein has been assessed, is inadvertent and due to a clerical error, because in the covering letters accompanying those notices, it has been clearly stated that the petitioner is being called upon to pay tax which the petitioner failed to pay before filing the returns, as required by section 22(2) of the act. therefore, the grievance of the petitioner that it has been assessed without giving any hearing to the petitioner is not well founded. there is no manner of doubt that the tax demanded from the..........march, 1983 the petitioner filed returns but did not pay any tax. it made a representation to the state government under section 12 of the act for granting exemption from payment of purchase tax. the petitioner avers that though the representation made by the petitioner has not been decided by the state government and that though the assessment has not been made, yet notices have been issued to the petitioner demanding tax for the period in question. the petitioner contends that the said notices are illegal because before making an assessment, the petitioner has not been heard and his representation has not been considered. the petitioner has, therefore, prayed that the demand notices be quashed. 3. in the return filed on behalf of the state, it is stated that though the petitioner had.....
Judgment:
ORDER

G.G. Sohani, J.

1. This is a petition under Article 226 of the Constitution of India.

2. The material facts giving rise to this petition briefly are as follows :

The petitioner is a company registered under the Companies Act, 1956 and carries on the business of manufacturing sugar at Dalauda. The petitioner is required to pay purchase tax on the purchase price of sugarcane, in accordance with the provisions of Section 7 of the M. P. General Sales Tax Act, 1958 (hereinafter referred to as 'the Act'). The petitioner is further required to file returns as provided by Section 17 of the Act. Section 22(2) of the Act lays down that before furnishing the return, a dealer has to pay the full amount of tax due from him according to such return. For the period 1st October, 1982 to 31st December, 1982 and 1st January, 1983 to 31st March, 1983 the petitioner filed returns but did not pay any tax. It made a representation to the State Government under Section 12 of the Act for granting exemption from payment of purchase tax. The petitioner avers that though the representation made by the petitioner has not been decided by the State Government and that though the assessment has not been made, yet notices have been issued to the petitioner demanding tax for the period in question. The petitioner contends that the said notices are illegal because before making an assessment, the petitioner has not been heard and his representation has not been considered. The petitioner has, therefore, prayed that the demand notices be quashed.

3. In the return filed on behalf of the State, it is stated that though the petitioner had filed the returns under the Act for the period 1st October, 1982 to 31st December, 1982 and 1st January, 1983 to 31st March, 1983 it had failed to make full payment of tax before filing the returns as required by Sub-section (2) of Section 22 of the Act. It is, therefore, contended that as the amount of tax due when returns were furnished was not paid, notices were issued to the petitioner under Section 22(4)(i)(a) of the Act calling upon the petitioner to pay tax. It is further contended that the liability of the petitioner to pay tax in accordance with the provisions of Section 22(2) of the Act is not dependent on the consideration of the representation made to the State Government by the petitioner, for exemption under Section 12 of the Act.

4. To appreciate the contentions advanced on behalf of the petitioner, it is necessary to refer to the relevant provisions of the Act.

Section 7. Levy of purchase tax.--(1) Every dealer who in the course of his business purchases any goods specified in Schedule II--

(i) from a registered dealer in circumstances in which no tax under Section 6 is payable by that registered dealer on the sale price of such goods; or

(ii) from any other person ;

shall be liable to pay tax on the purchase price of such goods, if after such purchase the goods are not sold either within the State or in the course of inter-State trade or commerce but are--

(a) sold otherwise or disposed of otherwise including a disposal under a compulsory levy not amounting to a sale under any enactment for the time being in force ; or

(b) used or consumed in the manufacture or processing of other goods or used or consumed otherwise ;

such tax shall be levied at the same rate at which tax under Sub-section (1) of Section 6 would have been levied on the sale of such goods within the State on the date of such purchase.

Section 12. Saving.--(1) The State Government day, by notification and subject to such restrictions and conditions as may be specified therein, exempt whether prospectively or retrospectively in whole or in part--

(i) any class of dealers or any goods or class of goods from the payment of tax under this Act for such period as may be specified in the notification ;

(ii) any dealer or class of dealers from any provision of the Act for such period as may be specified in the notification.

Section 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 amount of tax to be due than was shown in the original return, he shall pay the difference into a Government treasury.

(3-A) Notwithstanding anything contained in Sub-section (2) or Sub-section (3), where the registered dealer is the Central Government or a State Government or any of their departments, the Commissioner may, subject to such terms and conditions as may be prescribed, permit such dealer to pay the amount of tax by book adjustment.

(4)(i) The amount of tax--

(a) due where the returns were furnished without full payment of tax, or

(b) assessed under Sub-sections (1), (1-A), (3) and (4) of Section 18 less the sum, if any, already paid by 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 (6) or Sub-section (7) of Section 18 or Section 19, together with the penalty, if any, directed to be paid thereunder, and

(ii) the amount of penalty, if any, imposed or directed to be paid under any provisions of the Act not covered under Sub-clauses (b) and (c) of Clause (i) ;

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.

Now, it is admitted on behalf of the petitioner that the petitioner has not paid the tax due from it according to the returns filed by it. Section 22(4) of the Act lays down that in the event of failure by a dealer to pay the amount of tax due when the returns are furnished, such tax shall be paid in accordance with the notice sent to that dealer in that behalf. In the two letters (annexures A and C) accompanying the two notices (annexures B and D) sent by the Additional Assistant Commissioner of Sales Tax to the petitioner, it is clearly stated that the amount of tax demanded from the petitioner is due to its failure to pay that amount before furnishing returns, as required by Section 22(2) of the Act. Therefore, the petitioner is well aware that the amount of tax demanded from the petitioner is not in pursuance of any assessment order passed against the petitioner, but is due from the petitioner on account of the admitted non-compliance by the petitioner with the provisions of the Act requiring the petitioner to pay the tax before filing the returns. In such circumstances, the recital in the notices that the amount of tax referred to therein has been assessed, is inadvertent and due to a clerical error, because in the covering letters accompanying those notices, it has been clearly stated that the petitioner is being called upon to pay tax which the petitioner failed to pay before filing the returns, as required by Section 22(2) of the Act. This liability of the petitioner has not arisen on account of any assessment order passed against it. Therefore, the grievance of the petitioner that it has been assessed without giving any hearing to the petitioner is not well founded. There is no manner of doubt that the tax demanded from the petitioner is not in pursuance of any assessment order, but is due to its failure to comply with the requirements of the Act. The demand made from the petitioner to pay tax in terms of Section 22(4)(i)(a) of the Act cannot be held to be illegal.

5. The second contention advanced on behalf of the petitioner is that till its representation for exemption under Section 12 of the Act is decided, the petitioner cannot be held to be liable to pay any tax. The contention cannot be upheld. The liability of a dealer to pay tax in accordance with the provisions of the Act is not suspended till a decision is taken by the State Government on the representation made by a dealer for exemption. No provision of law or any authority to that effect was brought to our notice. In our opinion, therefore, no case has been made out by the petitioner for holding that tax is being illegally demanded from the petitioner.

6. The petition, therefore, fails and is accordingly dismissed. In the circumstances, parties shall bear their own costs. Security amount, if any, be refunded to the petitioner after verification. The interim order passed on 30th August, 1983 is vacated.


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