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K. Jagadish Hitter Vs. Revenue Divisional Commissioner, Southern Division, and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax;Constitution
CourtOrissa High Court
Decided On
Case Number Original Jurisdiction Case Nos. 537 and 538 of 1971
Judge
Reported in[1975]35STC152(Orissa)
AppellantK. Jagadish Hitter
RespondentRevenue Divisional Commissioner, Southern Division, and ors.
Appellant Advocate S.B. Nanda and ; J.K. Tripathi, Advs.
Respondent Advocate The Adv.-General and ; the Standing Counsel (S.T.)
DispositionPetition dismissed
Cases Referred(See Firm of Illuri Subbayya Chetty & Sons v. The State of Andhra Pradesh
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....k.b. panda, j.1. these are two petitions filed by one k. jagadish hitter, an assessee under the orissa sales tax act (orissa act 14 of 1947) for quashing two certificate proceedings, viz., c. c. no. 32 of 1968 and c. c. no. 1 of 1966 s. t., the former pending with the special certificate officer, koraput, jeypore, and the latter with the certificate officer-cum-s. d. m., nawrangpur (annexure 1 in both the petitions), and for a declaration that section 13(7) of the orissa sales tax act (hereinafter referred to as the act) is ultra vires the constitution of india being violative of article 14 thereof and for ancillary reliefs. facts alleged in both the petitions in short are thus :2. one firm named m/s. hunsraj & brothers of umarkote was carrying on business in its own name and had.....
Judgment:

K.B. Panda, J.

1. These are two petitions filed by one K. Jagadish Hitter, an assessee under the Orissa Sales Tax Act (Orissa Act 14 of 1947) for quashing two certificate proceedings, viz., C. C. No. 32 of 1968 and C. C. No. 1 of 1966 S. T., the former pending with the Special Certificate Officer, Koraput, Jeypore, and the latter with the Certificate Officer-cum-S. D. M., Nawrangpur (annexure 1 in both the petitions), and for a declaration that Section 13(7) of the Orissa Sales Tax Act (hereinafter referred to as the Act) is ultra vires the Constitution of India being violative of Article 14 thereof and for ancillary reliefs. Facts alleged in both the petitions in short are thus :

2. One firm named M/s. Hunsraj & Brothers of Umarkote was carrying on business in its own name and had registered itself as an assessee under the Act. That firm is now defunct. On 1st July, 1963, the petitioner purchased some stock of that firm and carried on the business there at Umarkote 'in his own name'.

The Sales Tax Officer assessed the firm M/s. Hunsraj & Brothers (hereinafter described as transferor-firm) towards the end of 1964. Again in 1966 it was reopened under Section 12(8) of the Act by the Intelligence Circle, Berhampur, for the quarters ending 30th September, 1961, to 31st March, 1963.

As admitted in the petition notices were issued to the petitioner treating him as successor-in-interest of the transferor-firm, though, in fact, he had not purchased the entire ownership of the business of the transferor-firm and as such was not the 'transferee of business' within the meaning of Section 19(1) of the Act. It is on this ground that the petitioner did not accept the notice, even though residing at Umarkote, and also did not think it necessary to contest the assessment proceeding. In the result the regular assessment proceeded ex parte and a sum of Rs. 17,526.61 was fixed as the total amount of tax and penalty against the transferor-firm. Assessment orders and demand notices standing in the name of the transferor-firm were sought to be served on the petitioner as 'successor-in-interest of M/s. Hunsraj & Brothers', but he did not accept them also on the self-same plea.

Consequently, for non-payment of the tax a requisition was issued by the Assistant Sales Tax Officer, Jeypore, on 24th August, 1970, for recovery of a sum of Rs. 19,191.60, which was the sales tax dues for the quarters ending September, 1961, to March, 1963, including interest of Rs. 1,664.99. On receipt of the said requisition the Certificate Officer started certificate proceedings, viz., C. C. No. 32 of 1968 against the petitioner for recovery of the amount, which forms the subject-matter of 0. J. C. No. 537 of 1971.

3. The reopened assessment proceeding also proceeded ex parte against the petitioner and a sum of Rs. 5,302.10 was fixed towards tax 'for the period from 31st December, 1961, to 31st March, 1963', which forms the subject-matter of O. J. C. No. 538 of 1971. This subsequent assessment order under Section 12(8) and demand notice against the transferor-firm were also sought to be served on the petitioner on the self-same grounds that the petitioner was successor-in-interest of the defunct transferor-firm but the petitioner again refused to accept them. Accordingly, a requisition was sent to the Certificate Officer-cum-S. D. O., Nawrangpur, for recovery of the amount of Rs. 5,302.10, which was numbered as C. C. No. 1 of 1966 S. T.

4. In both the certificate cases the petitioner denied liability under Section 8(1) of the Orissa Public Demands Recovery Act on the plea that he had not purchased the entire stock of the transferor-firm and, therefore, he was not the successor-in-interest to incur the liability. Both the Certificate Officers rejected the contention of the petitioner and Certificate Case No. 32 of 1968 was disposed of against the petitioner on 12th December, 1969, and the Certificate Case C. C. No. 1 of 1966 S. T. was disposed of against the petitioner on 28th January, 1967. Both the rejection orders are annexure 1 to the petitions. The petitioner preferred appeals before the Additional District Magistrate, Koraput, against these orders but they were dismissed on the same day, i. e., 13th July, 1970, on the ground that the petitioner was not entitled to challenge the legality of the assessment order or his liability to pay tax and he might seek redress in proper court of law. These are annexure 2 to the petitions. Two revisions were also carried before the Revenue Divisional Commissioner, Southern Division, Orissa, Berhampur, who by his order dated 21st May, 1971, rejected the revisions-vide annexure 3 to the petitions.

Thereafter the petitioner, apprehending attachment of his property at Umarkote, filed the present petitions on 5th July, 1971, impleading the Revenue Divisional Commissioner, Southern Division, Orissa, the Certificate Officer and the State of Orissa as opposite parties 1, 2 and 3 respectively, with the twofold prayer as aforesaid, on the ground that (i) the petitioner is not the transferee as envisaged under Section 19(1) of the Act to incur the liability and (ii) recovery of the dues under the Act as an arrear of land revenue with the aid of the O. P. D. R. Act as provided under Section 13(7) of the Act, offends against the fundamental right of a citizen guaranteeing equality before the law inasmuch as there is no guideline when the authorities will take recourse to civil suit and when to the O. P. D. R. Act-the provisions of the latter being more onerous and stringent than that of the former. Thus it affords ample scope for the play of one's fancy which might result in naked discrimination.

5. In the counter-affidavit filed by the opposite parties the allegation in the petition that the petitioner only purchased some stock of goods from the transferor-firm was stoutly denied. It was specifically alleged that the ownership of the entire business of the firm M/s. Hunsraj & Brothers, a registered dealer under the Act, was transferred to the petitioner and after the transfer the petitioner carried on the self-same business in the same premises with the same employees of the transferor-firm. The petitioner, in response to notice under Section 16(1) of the Act, appeared before the Assistant Sales Tax Officer, Koraput I Circle, Jeypore, on 8th October, 1963, and gave a statement that 'I am as well as my firm M/s. Kishanlal Jagadish Mitter is willing to pay all the outstanding dues against M/s. Hunsraj & Co., Umerkote, as will be due on him from time to time till the date of transfer of business'. The petitioner's partner, Kishanlal Sethi, gave a similar statement on solemn affirmation on 11th October, 1963. These are annexures A and B to the counter-affidavits.

Against the assessment orders for the quarters ending September, 1963, and December, 1963, the petitioner preferred appeals, which were allowed in part on the basis of the transfer of the entire business and the petitioner has claimed a refund thereby accepting the position that there was transfer of the entire business. Hence, it was pleaded that since the petitioner-transferee was carrying on business in the same premises, substantially in the same goods and thus was the successor-in-interest of the defunct firm of M/s. Hunsraj & Brothers, the petitioner was liable to pay the unpaid arrears of tax assessed and quantified against the transferor-firm.

The allegation in the petition that the transferor-firm was assessed towards the end of 1964 was denied and it was asserted that it was towards the end of 1963. It was again reopened under section 12(8) of the Act by the Intelligence Circle, Berhampur, for the quarters ending 30th September, 1961, to 31st March, 1963, in November, 1964, and not in 1966 as alleged in the writ petition. The further averment made in the petition that notices of assessment proceedings were issued to the petitioner was stated to be not correct for they were issued to the transferor-firm and finalised against it as admitted in the petition. The transferor-firm not having responded to the notices, the proceedings had to be carried on ex parte and the orders of assessment quantifying the tax payable by it were passed on 26th November, 1966. Thereafter notices of demand and the copies of assessment orders were sent to the transferor-firm by post but they were returned unserved as the addressee was not found in Umarkote. The notices were then sent for service through the Inspector of Sales Tax, who served the same by affixture in the presence of witnesses on the last place of business as required under the Rules. Yet tax dues were not paid within the due date. So a notice to show cause as to why penalty should not be levied under section 13(5) was issued to the transferor-firm. As the same also could not be served, the matter was sent for enquiry to the Inspector of Sales Tax. He reported that the entire business of the transferor-firm had been transferred to the petitioner. Accordingly, letters were issued to the petitioner indicating that as the transferee of the entire business, he is liable to pay the tax and penalty quantified and imposed on the transferor and unless the tax and penalty were paid within a particular time, as indicated in the letters, maximum penalty under Section 13(5) would be levied and the entire amount would be recovered as arrears of land revenue as provided under Section 13(7) of the Act. Yet the petitioner did not pay the tax and penalty imposed on the transferor-firm. Consequently, two requisitions were issued by the Assistant Sales Tax Officer, Jeypore-one in respect of the regular assessment on 27th December, 1965, for quarters ending 31st December, 1961, to 31st March, 1963, under Section 12(4) of the Act amounting to Rs. 5,302.10 including interest and the second one on 31st January, 1968, for recovery of a sum of Rs. 19,191.60 including interest in respect of assessment made under Section 12(8) for the quarters ending 30th September, 1961, to 31st March, 1963. Two certificate cases were therefore started, namely, C. C. No. 1 of 1966 in the Court of Certificate Officer, Nawrangpur, and C. C. No. 32 of 1968 in the Court of Special Certificate Officer, Koraput, Jeypore. In respect of the latter case the objection filed by the petitioner was rejected on the ground that the objection petition was not filed within time, nor it was in proper form, and further that the objector did not deny the liability on any of the grounds stipulated under Section 8(1) of the O. P. D. R. Act.

In Certificate Case No. 1 of 1966 the objection was rejected on the ground that both the partners of the transferor-firm-M/s. K. Jagadish Mitter, namely, Kishanlal Sethi and Jagadish Mitter (the sole petitioner)-had made statements on solemn affirmation to pay and were willing to pay all the tax dues outstanding or that would be determined in respect of the transferor-firm (annexures A and B) and, as such, the transferee was liable for all the tax dues of the transferor up to the date of transfer under Section 19(1) of the Act.

Regarding the legal point raised that Section 13(7) of the Act is unconstitutional being hit by Article 14 of the Constitution, it was stated that Section 13(7) of the Act prescribes the only procedure for recovery of the arrear of sales tax dues. The section does not prescribe two separate procedures as alleged in the petition and, as such, there is no scope for violation of Article 14 of the Constitution. Alternatively, even assuming that there are two different procedures, one under the Orissa P. D. R. Act and the other under the ordinary law by way of a suit, it was submitted that Article 14 cannot be said to have been violated merely because Government have a free choice of remedies. Moreover, the procedure provided under the 0. P. D. R. Act cannot be said to be more onerous or prejudicial than the civil suit inasmuch as the O. P. D. R. Act makes equally elaborate procedure with proper safeguards like that under the Code of Civil Procedure for execution of decrees. Further the orders in the certificate proceedings can be questioned in a civil suit as provided under Chapter IV of the O. P. D. R. Act and that the P. D. R. Act itself makes provisions for appeal, revision and review which excludes the apprehension of any arbitrary exercise of powers.

The matter was before a Division Bench of this Court, but since challenging the constitutionality of Section 13(7) of the Act is a res of great public importance over which there is no direct decision, it has been referred to a larger Bench and that is how it is before us.

6. Mr. S. B. Nanda, the learned counsel for the petitioner raised the following contentions :

(i) Section 19(1) of the Act fixes on the transferee only the liability to pay the tax but does not suggest the mode of recovery of the same. Section 13(7) of the Act does not apply to transferees. The mode of recovery indicated therein 'as arrear of land revenue' does not cover the case of a transferee which can only be made through the civil court ;

(ii) Liability of the transferee to pay penalty or interest as distinct from 'tax' is not contemplated under Section 19(1) of the Act;

(iii) Assuming that Section 13(7) of the Act applies to transferees, if recovery under the said Section 13(7) cannot be made by a civil suit, then no action under Section 5 of the O. P. D. R. Act is warranted and the whole certificate proceeding becomes without jurisdiction ; and

(iv) If, on the other hand, recovery of dues under the Act is permissible by suit, then the provisions of recovery under the O. P. D. R. Act are hit by Article 14 of the Constitution.

7. In answer to the above contentions it was submitted by the learned standing counsel for the revenue firstly, that the petitioner being the transferee of the entire business assets of the transferor and not some of the stock-in-trade of the transferor-firm as averred in the petition, he is the transferee as contemplated under Section 19(1) of the Act and, as such, liable to pay the tax, which term includes penalty and interest recoverable from the transferor-firm till the date of transfer. Secondly, that the only mode of 'payment and recovery of tax and penalty' is provided under Section 13(7) of the Act 'as an arrear of land revenue'. Nowhere the Act provides for recovery of such tax through a civil suit. On the contrary, Section 22 of the Act puts a bar to any other proceeding to challenge any assessment made or purported to have been made, and no order passed or purported to have been passed under the provisions of the Act and the Rules made thereunder shall be called in question in any court save as provided under the Act. This by necessary implication puts a ban on recovery of the dues under the Act through civil suit. Thirdly, that assuming the final assessment made under the provisions of the Act is also recoverable through a regular civil suit, yet the mode of recovery with the aid of the P. D. R. Act is in no way more rigorous and stringent than the mode of recovery provided in an execution proceeding under the C. P. C. and, thus, it is not violative of Article 14 of the Constitution. And lastly, it was submitted that the petitioner is not entitled to invoke the extraordinary powers of the court in its writ jurisdiction at this belated stage.

8. From the rival contentions the points that emerge for consideration are :

(I) Is the petitioner liable to pay the entire assessment dues--including the tax, penalty and interest of the transferor-firm ?

(II) Are there two modes of recovery of such dues, one by certificate proceedings under the P. D. R. Act and the other by a civil suit If so, is the one provided under the P. D. R. Act more onerous and, as such, violative of Article 14 of the Constitution ?

(III) Should the reliefs sought for in the petitions be turned down on the ground of delay ?

9. Point No. I.-This has two facets-one factual and the other legal. Much turns out on the factual aspect and so we proceed to decide the same first, which, however, will not detain us much.

It is averred in the petition that the petitioner 'has only purchased a few stock of the transferor-firm but not its entire business'. This has been specifically denied in the counter and in support thereof the statements of the petitioner and his partner on solemn affirmation (annexures A and B) have been filed.

A reading of those two annexures leaves no room for doubt that the petitioner purchased the 'entire business' of the transferor-firm lock, stock and barrel. Further in annexures A and B, the petitioner and his partner have also admitted and owned the responsibility to pay all the dues of the transferor-firm. There is no rejoinder to controvert the same. As such, according to the explanation to Section 19(1) of the Act, the presumption would be 'that there has been an entire transfer of the business'. Besides, we are reluctant to embark upon a discussion over a debatable question of fact in exercise of our writ jurisdiction and would, therefore, proceed on the assumption that the petitioner is in fact the transferee of the 'entire business' of the transferor. Consequently, the assertion in the petition that the petitioner did not accept the notices issued to him and did not think it necessary to contest the assessment proceedings even though residing at Umerkote, on the ground that he was not the transferee of the 'entire business' of the transferor, far from advancing his case, only reveals his knowledge of the proceedings, defiant attitude and wanton dissociation from them.

(a) The liability of a transferee of an entire business is dealt with in Section 19(1) of the Act, which provides :

19. Tax payable by transferee of business.-(1) When the ownership of the business of a dealer liable to pay tax under this Act is entirely transferred any tax payable in respect of the business till the date of the transfer and remaining unpaid at the time of transfer, shall, without prejudice to any action that may be taken for its recovery from the transferor, be payable by the transferee as if he were a dealer liable under this Act for such tax and the transferee shall be liable to pay tax on the sales made by him on and from the date of such transfer and shall within thirty days of the transfer apply for registration under this Act unless he is already registered.

Explanation.-When a dealer carries on business in the same premises substantially in the same goods in succession to a dealer liable under this Act, it shall be presumed that there has been an entire transfer of the business notwithstanding any change in the constitution, style or name of the business unless the contrary is proved by the dealer succeeding to the business.

It is clear that the section itself creates a fiction wherein a transferee of an entire business, whether registered or not under the Act, becomes liable for the tax due on the transferor till the date of transfer. The purpose of the legislature in engrafting this section is obvious, namely, to saddle the transferee of an entire business with the liability to pay the unpaid tax due on the transferor, without prejudice to any action that may be taken for its recovery from the transferor. Thus the arrear tax dues can be realised from either, as if the transferor and the transferee are two co-defaulters. Without such a provision there is enough scope for tax evasion on fake grounds of transfer of business, an eventuality which the provisions of the section are calculated to meet. This issue came directly for decision by a Division Bench of this Court in the case of Patnaik & Co, (P.) Ltd. v. Commissioner of Sales Tax [1963] 14 S.T.C. 738. In that case this court has held that 'by virtue of the legal faction created by Section 19 of the Orissa Sales Tax Act, 1947, a transferee of a business is treated as a registered dealer. He therefore comes within the definition of 'dealer' in Section 2(c) to whom the various provisions of the Act, including the mode of recovery of tax, would apply'. There exactly the same contention, as is done now, was raised, namely, 'By the transfer of the ownership of the business in favour of the petitioner, only the liability to pay tax in respect of such business remaining unpaid at the time of the transfer was undertaken by the transferee under Section 19 of the Act. The mode of recovery of tax under Section 13-A of the Act is not applicable to the petitioner by further extension of the legal fiction under Section 19'. But this contention was negatived. So Mr. Nanda endeavoured to get over this by arguing that to be the law prior to the amendment of Section 19 in 1962. But after the amendment of 1962, according to him, Section 19-A to Section 19-D have been added, which has basically altered the context and so that citation has no application to the facts of this case.

(b) To appreciate this contention, Section 19(1) of the Act, as it stood prior to its amendment, may be quoted :

19. (1) When the ownership of the business of a registered dealer is entirely transferred, any tax payable in respect of such business remaining unpaid at the time of the transfer shall be payable by the transferee as if he were the registered dealer; and the transferee shall within thirty days of the transfer apply for registration under Section 9.

A comparison of Section 19(1) of the Act as it stood prior to the amendment and after the amendment reveals no essential difference. The amended Section 19(1) is only in a little more expanded form. Thus any argument that the citation referred to above being over the pre-amendment Section 19(1) of the Act is inapplicable to the post-amendment Section 19(1) of the Act, is utterly untenable. The further line of argument that Section 19(1) has assumed a new complexion because of the engrafting of new sections like 19-A, 19-B, 19-C and 19-D is equally barren of substance inasmuch as those additional sections only include different categories of assessees than transferees such as legal representatives, executors, administrators and guardians, etc., with which we are not at all concerned. In fact the addition of these new sections has no impact on the main Section 19(1), whose amendments are very formal as already indicated. As such, the ratio of the case-law of this court, referred to above, applies on all fours to this case.

(c) This leads to the other aspect of the argument, namely, whether payability of tax as contemplated under Sub-section (1) of section 19 also includes penalty and interest. This question is no more ambulatory. Their Lordships of the Supreme Court in the case of C. A. Abraham v. Income-tax Officer, Kottayam [1961] 41 I.T.R. 425 (S.C.), held that:

In interpreting a fiscal statute, the court cannot proceed to make good deficiencies if there be any : the court must interpret the statute as it stands and in case of doubt in a manner favourable to the taxpayer. But where by the use of words capable of comprehensive import, provision is made for imposing liability for penalty upon taxpayers guilty of fraud, gross negligence or contumacious conduct, an assumption that the words were used in a restricted sense so as to defeat the avowed object of the legislature qua a certain class will not be lightly made.

Section 44 sets up a machinery for assessing the tax liability of firms which have discontinued their business and provides for three consequences, (1) that on the discontinuance of the business of a firm, every person who was at the time of its discontinuance a partner is liable in respect of income, profits and gains of the firm to be assessed jointly and severally, (2) each partner is liable to pay the amount of tax payable by the firm, and (3) that the provisions of Chapter IV so far as may be, apply to such assessment. The liability declared by Section 44 is undoubtedly to assessment under Chapter IV, but the expression 'assessment' used therein does not merely mean computation of income under Section 23. The word 'assessment' has been used in Chapter IV in its widest connotation and includes the procedure for declaration and imposition of tax liability and the machinery for enforcement thereof including a proceeding for imposition of penalty under Section 28.

Again at page 1265 in the case of Commissioner of Income-tax, Andhra Pradesh, Hyderabad v. Bhikaji Dadabhai and Co. [1961] 42 I.T.R. 123 (S.C.), their Lordships only reiterate their earlier view that penally is only an additional tax as expressed in the earlier decision referred to above. Therein the opinion of the High Court that imposition of penalty is not a necessary concomitant or incident of the process of assessment, levy and collection of tax has been held to be erroneous. Accordingly, deciding the first point against the petitioner we would hold that he is liable to pay the tax that includes penalty and interest as transferee under Section 19(1.) of the Act.

10. Point No. II.-The mode of payment and recovery of tax and penalty has been provided under Section 13 of the Act. Section 13(7) of the Act provides :

The amount which remains unpaid after the due date of payment in pursuance of the notice issued under Sub-section (4) or Sub-section (5) together with the interest payable under Sub-section (6) shall be recoverable as an arrear of land revenue.

This is the only section that provides for realisation or recovery of the amount that remains unpaid and in it there are references to the assessment made under Sub-section (4), levy of penalty under Sub-section (5) and liability to pay interest under Sub-section (6) of Section 13 to be recoverable as an arrear of land revenue. For this the Commissioner or anybody duly appointed by him is to send a requisition to the concerned Certificate Officer for realisation of the amount as arrears of land revenue. There is no other authority provided under the Act except the Commissioner who is competent to send any such requisition. The Commissioner is also not clothed with any power to realise the tax by taking recourse to any other method than sending a requisition for realisation as arrears of land revenue. The Act does not envisage anywhere that the Commissioner can realise the amount by filing a civil suit. Thus, there is no basis for the argument that the same authority under the Act has got two modes open for recovery of the tax and so, it can pick and choose and take recourse to the more rigorous method in cases of some assessees while leaving the rest and thus exercise hostile discrimination. In view of this specific provision in the Act and absence of any indication anywhere that the Commissioner can also take recourse to the civil court by filing a suit for realisation of tax not paid, we find such an argument is not only presumptive but baseless.

Section 22 of the Act specifically says how certain proceedings are barred and the assessee cannot challenge any assessment in any other forum except what is provided under the Act. By necessary implication it prohibits the civil court to entertain any suit challenging the validity of any assessment. Section 22 runs thus :

22. Bar to certain proceedings.-Save as is provided in Section 24 no assessment made or purporting to have been made and no order passed or purporting to have been passed under the provisions of this Act and the Rules made thereunder by the Commissioner, Tribunal or Additional Tribunal, as the case may be, or any person appointed under Section 3 to assist the Commissioner shall be called in question in any court and save as is provided in Section 23, no appeal or application for revision shall lie against any such assessment or order as the case may be.

From the provisions of the section it is clear that the assessments made under the Act are final. They cannot be questioned in any other forum than those provided under the Act. Thus the legality or correctness of the assessment is statutorily barred to be agitated by an assessee in a civil suit. The Orissa Sales Tax Act is a self-contained statute that makes provision for appeals, revisions and references under Sections 23 and 24 of the Act. This Act read with the 0. P. D. R. Act creates a full-fledged comprehensive Code imposing liability and creating effective machinery for deciding questions of law and fact arising out of that liability and, as such, maintainability of an ordinary civil suit must be taken to have been barred by necessary implication apart from the specific bar, referred to above, under Section 22 of the Act. There is hardly any dispute over this proposition and their Lordships of the Supreme Court in various cases have laid down this principle: (See Firm of Illuri Subbayya Chetty & Sons v. The State of Andhra Pradesh [1963] 14 S.T.C. 680 (S.C.). Therefore, the assessment in this case could not have been challenged by the petitioner in any civil court. As admitted in the petition he did not contest the assessment proceedings and allowed them to proceed ex parte. He also did not choose to carry any appeals or revisions or references as provided under Sections 23 and 24 of the Act. It is only at the execution stage when there was threat of attachment of his property that he contested the matter to the end as provided under the O. P. D. R. Act, but without success.

Mr. Nanda contends that by resorting to the O. P. D. R. Act for realisation of dues instead of a civil suit, he has been more harshly treated and thus discriminated. Hence, the question that remains now for consideration is if the mode of recovery as provided under Section 13(7) of the Act taking recourse of the 0. P. D. R. Act is more onerous than the one provided under the C. P. C. As indicated earlier the Act being a self-contained one it makes provision for the manner of realisation or recovery of the dues and that is with the aid of the O. P. D. R. Act. It does not say that it will be realised with the help of the civil court under the provisions of the C. P. C. Therefore, the contention advanced on behalf of the petitioner that Section 13(7) of the Act that provides for realisation of the dues with the aid of the O. P. D. R. Act is more onerous than the one under the general law under the C. P. C. does not arise at all, for no two modes are contemplated under the Act. The Act contemplates only one method and that is with the aid of the P. D. R. Act. Therefore, any comparison between the provisions of the 0. P. D. R. Act and of the C. P. C. do not at all arise and such an argument is without any foundation. The assessment being final the only question is the mode of recovery. We fail to understand, how for recovery of the amount when there is a provision under the Act itself, Government (not the Commissioner) would advisedly run to a civil court for realising that amount. Further, the contention that it will not be for the realisation of the amount by an execution proceeding but for filing a suit for realisation of the amount is something more fantastic and inconceivable. Already there is an award or decree which has to be executed and the specific method is provided under the Act itself. In that background one fails to understand how and why Government will rush to a civil court to file a plaint for recovery of an unquestionable and determined amount which could be realised under the provisions of the P. D. R. Act more expeditiously. The learned counsel for the petitioner could not cite any case-law where such an apparently cumbrous procedure has been adopted. Even otherwise, if we proceed on the assumption that Government would be ill-advised to go to a civil court for realisation of an amount which cannot be challenged in a civil court and for which there is a special mode of recovery, we are yet unable to see how the provisions of the P. D. R. Act in the matter of realisation of amount from the assessee is more onerous than the procedure laid down under the C. P. C. It is unnecessary to make a section-wise comparison between the two procedures. Suffice it to say that under the P. D. R. Act also the assessee can challenge the certificate debt at two stages. Under Section 8 of the P. D. R. Act the assessee has the scope of denying the liability on grounds specified therein. The second stage comes when such a petition under Section 8(1) is disposed of under Section 9. Under Chapter IV of the P. D. R. Act there is provision for reference to civil court. Under Section 42, the certificate-debtor can file a suit in a civil court to have the certificate cancelled or modified. Section 43 provides the grounds for cancellation or modification of certificate by civil court. Under Section 44 suits to recover possession or to set aside sale of immovable property where notice of certificate is not served is provided for and the last Section 45 postulates a general bar to jurisdiction of civil courts save where fraud is alleged. Besides, those provisions giving scope to come to the civil court, under Sections 60, 61 and 62 of the P. D. R. Act there are provisions for appeal, revision and review respectively. Law does not envisage that the provisions of the two Acts must be identical or else they become discriminatory. Here the learned counsel for the petitioner could not point out anything substantial to show how the provisions of the C. P. C. are more liberal than the provisions of the P. D. R. Act. All that he could urge was that in the case of a civil suit court-fee is paid, it is tried by a judicial officer, and that it is not of a summary nature. Hardly those are valid grounds to justify striking down any provision as discriminatory and violative of Article 14 of the Constitution.

The Act gives power to the Commissioner under Section 13(7) only for recovery of the dues with the aid of the P. D. R. Act and not under the C. P. C. The provisions of the Act therefore do not lead to the result that a more harsh and drastic remedy has been applied against the petitioner who is proceeded against for the recovery of the dues under the provisions of the P. D. R. Act. The P. D. R. Act affords sufficient checks and balances preventing arbitrary exercise of power. Accordingly, this second point is also answered against the petitioner.

11. Point No. III.-It was contended by the learned standing counsel for the department that apart from any other consideration the petition should be rejected in limine because of undue delay in seeking the extraordinary jurisdiction of the court under Article 226 of the Constitution. We think there is enough force in this. The transfer of the business to the petitioner was effected on 1st July, 1963. The two certificate cases were started in 1966 and 1968. Objections were filed by the petitioner before the respective Certificate Officers which were turned down on 28th January, 1967, in C. C. No. 1 of 1966 and the other on 12th December, 1968, in C. C. No. 32 of 1968. At that stage the petitioner could have gone to the civil court or could have come to this court if he had a genuine grievance but instead of doing so he unsuccessfully carried on appeals and revisions under the P. D. R. Act. If really his grievance was on any legal ground which he could not have agitated in any other forum, he should not have waited so long and file these petitions in July, 1971. Apart from lack of merit in the case we are also inclined to hold that there has been undue delay for which we are loath to interfere in the matter.

The petitions, therefore, must fail and hence they are hereby dismissed with costs. Hearing fee of Rs. 100 (one hundred only).

G.K. Misra, C.J.

12. I agree.

B.K. Patra, J.

13. I agree.


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