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V.S. Ayyappan Vs. the State of Kerala - Court Judgment

LegalCrystal Citation
SubjectSales Tax;Civil
CourtKerala High Court
Decided On
Case NumberCri. R.P. Nos. 308 and 309 of 1965
Judge
Reported in[1966]18STC474(Ker)
AppellantV.S. Ayyappan
RespondentThe State of Kerala
Appellant Advocate P. Subramonian Potti and; S.A. Nagendran, Advs.
Respondent AdvocateState Prosecutor
Cases Referred(Indira Sohanlal v. Custodian of Evacuee Property) A.I.R.
Excerpt:
- - therefore where, as in this case, the repealing section which purports to indicate the effect of the repeal on previous matters, pro vides for the operation of the previous law in part and in negative terms, as also for the operation of the new law in the other part and in positive terms, the said provision may well be taken to be self contained and indicative of the intention to exclude the application of section 6, general clauses act. and therefore when punishment is imposed for the latter offence it covers the former as well and there cannot be a further punishment imposed for the former......against him-one for each year of assess ment- under sections 46(1)(f) and 46(2)(c) of the kerala general sales tax act, 1963 (hereafter 'the new act'); and the sub-divisional magistrate, kunnamkulam, convicted him under both provisions, finding the sale to his son to have been made in order to evade payment of the taxes and fined him rs. 450 and rs. 1,000 with one month's simple imprisonment in default in each case under section 46(1)(f) and sentenced him to one month's simple imprisonment in regard to each year of assessment under section 46(2)(c). on appeal, the additional sessions judge, trichur, confirmed the convictions and sentences. hence these revision petitions.3. counsel contended that the taxes, in regard to which the two prosecutions were launched against the petitioner,.....
Judgment:
ORDER

M. Madhavan Nair, J.

1. These two petitions are by a trader assessed under the General Sales Tax Act for the two years 1960-61 and 1961-62 against his con victions for non-payment of taxes for those years. The questions raised are the same in both.

2. On 29th October, 1963, the petitioner's place of business was inspected by the Intelligence Officer, Palghat, when 'a second series' of account books were seized. On the basis of transactions disclosed by them he was assessed on escaped turnovers in the years 1960-61 and 1961-62 by orders dated March 5 and 4, 1964, to pay Rs. 460.26 and Rs. 1,650.41 respectively. Though demand notices were served on the assessee on 9th May, 1964, he did not pay the taxes. It was also found that on 22nd November, 1963, he had executed a sale of his pro perties to his son, waiving price on account of affection. The revenue launched two prosecutions against him-one for each year of assess ment- under Sections 46(1)(f) and 46(2)(c) of the Kerala General Sales Tax Act, 1963 (hereafter 'the new Act'); and the Sub-Divisional Magistrate, Kunnamkulam, convicted him under both provisions, finding the sale to his son to have been made in order to evade payment of the taxes and fined him Rs. 450 and Rs. 1,000 with one month's simple imprisonment in default in each case under Section 46(1)(f) and sentenced him to one month's simple imprisonment in regard to each year of assessment under Section 46(2)(c). On appeal, the Additional Sessions Judge, Trichur, confirmed the convictions and sentences. Hence these revision petitions.

3. Counsel contended that the taxes, in regard to which the two prosecutions were launched against the petitioner, arose under the General Sales Tax Act, 1125 (hereafter 'the old Act'), and therefore the relative prosecutions can be under that Act alone, and that the instant convictions and sentences under the new Act are illegal. I see little force in this contention. As has been indicated by Raman Nayar, J., with concurrence of Varadaraja Iyengar, J., in State of Kerala v. Krishnan [1957] 8 S.T.C. 738 the gist of an offence in this regard is a deliberate default in payment of tax assessed. under Section 13 of the old Act, tax was to be paid within the time specified in notice of assessment; and under Section 23 of the new Act, tax is to be paid within the time specified in notice of demand. The assessee cannot therefore be said to have defaulted payment of tax before expiry of the period specified in the concerned notice. It is conceded that during the currency of the old Act, no assessment was made and therefore no notice of assessment or of demand was served on the petitioner. It follows that no offence was committed then. Section 61 of the new Act, which repealed the old Act with effect from 1st April, 1963, has provided that all 'amounts due' under the old Act may be recovered as if they accrued under the new Act. Liability to tax has been incurred by the petitioner when he carried out taxable transactions, though its payability is deferred till after the tax is quantified in formal assessment and demand made for the assessed amount. The sales which gave rise to the taxes con cerned in these cases were had in the years 1960-61 and 1961-62. So, by 31st March, 1962, amounts became due by the petitioner under the old Act, which, by virtue of Section 61 of the new Act, became recover able as if they accrued under the new Act. When the same was assessed and demanded, he was bound to pay. By his omission to pay within the time allowed, he committed an offence under the sales tax law. The form of demand is immaterial. By virtue of Section 61 of the new Act, steps taken to recover 'amounts due' under the old Act are proceedings under the new Act. The offence of wilful non-payment of tax demanded after the new Act has come into force cannot be said to have arisen under the old Act which was not in force at the relevant time. Counsel sought reliance on Section 4 of the (State) General Clauses Act, which corresponds with Section 6 of the (Central) General Clauses Act. I am afraid that the wording of Section 61 of the new Act is a complete answer thereto. It reads :

The General Sales Tax Act, 1125, is hereby repealed :

Provided that such repeal shall not affect the previous operation of the said Act or any right, title, obligation or liability already acquired, accrued or incurred thereunder, and subject thereto, any thing done or any action taken...in the exercise of any power con ferred by or under the said Act, shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act, as if this Act were in force on the date on which such thing was done or action was taken, and all arrears of tax and other amounts due at the commencement of this Act may be recovered as if they had accrued under this Act.

Quite parallel to the above provision is that in Section 58 of the Central Act 31 of 1950, which reads as follows :

(1) The...Ordinance, 1949, is hereby repealed.

(2) ...

(3) The repeal by this Act of the...Ordinance, 1949...shall not affect the previous operation thereof, and subject thereto, any thing done or any action taken in the exercise of any power conferred by or under that Ordinance shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act as if this Act were in force on the day on which such thing was done or action was taken.

The Supreme Court held :

In the present case sub-Section (3) of Section 58 of Central Act 31 of 1950 purports to indicate the effect of that repeal, both in negative and in positive terms. The negative portion of it relating to 'the previous operation' of the prior Ordinance appears to have been taken from Section 6(b), General Clauses Act, while the positive portion adopts a 'deeming' provision quite contrary to what is contemplated under that Section.

Under the General Clauses Act the position, in respect of matters covered by it, would have to be determined as if the repealing Act had not been passed, while under Section 58 of Central Act 31 of 1950, the position-so far as the positive portion is concerned-has to be judged as if the repealing Act were in force at the earlier relevant date.

Therefore where, as in this case, the repealing Section which purports to indicate the effect of the repeal on previous matters, pro vides for the operation of the previous law in part and in negative terms, as also for the operation of the new law in the other part and in positive terms, the said provision may well be taken to be self contained and indicative of the intention to exclude the application of Section 6, General Clauses Act. We are, therefore, of the opinion that the said Section cannot be called in aid in this case.' (Indira Sohanlal v. Custodian of Evacuee Property) A.I.R. 1956 S.C. 77.

Those observations apply fully here too.

3. Counsel now contends that an evasion of payment of tax can occur only after the tax has become payable, and that, as the petitioner's liability to pay tax arose only after May, 1964, the sale executed by him in November, 1963, cannot constitute a fraudulent evasion of payment of tax within the meaning of Section 46(2)(c). I do not agree with the proposition that an act in evasion of payment of tax can only be after the tax has become payable. As stated in the preceding paragraph, the petitioner has 'incurred' liability for taxes in question on 1st April, 1962. The sale executed by him in favour of his son was after that date. In fact it was even after the Intelligence Officer seized his secret books when he knew for certain that his concealment of his real turnovers would not avail him any further to escape payment. under Section 53 of the Transfer of Property Act, a transfer made with intend to defeat subsequent creditors may be fraud on creditors, and avoided as such. On analogy, a transfer of property designed to defeat revenue is a fraud on revenue and that coupled with non-payment of tax within the time allowed by law amounts to a fraudulent evasion of payment of tax punishable under Section 46(2)(c) of the new Act.

4. It is next urged that when one is convicted for fraudulent evasion of payment of tax under Clause (2)(c) of Section 46 of the new Act, one cannot further be convicted for wilful non-payment of the identical tax under Clause (1)(f) of the same section. Section 46, so far as is relevant here, reads :

46. (1) Any person who-

(f) wilfully acts in contravention of any of the provisions of this Act or the rules made thereunder, for the contravention of which no express provision for punishment is made by this Act, shall, on conviction by a Magistrate not below the rank of a Magistrate of the First Class, be liable to fine which may extend to one thousand rupees.

(2) Any person who-

(c) fraudulently evades the payment of tax, fee or other amount due from him under this Act,...

shall, on conviction by a Magistrate not below the rank of a Magis trate of the First Class, be liable to simple imprisonment which may extend to six months or to fine not less than the tax or other amounts due but not exceeding two thousand rupees, or to both.

A fraudulent evasion of payment of tax may come within the ambit of both the clauses (1)(f) and (2)(c). Clause (1)(f) is a general provision relating to any wilful contravention of any of the provisions of the (new) Act or rules for which no specific provision for punishment is made. Clause (2)(c) is a specific provision relating to punishment for fraudu lent evasion of payment of tax, which is therefore taken out of the ambit of Clause (1)(f). Further, a wilful non-payment of tax is neces sarily implicit in a fraudulent evasion of payment of tax; and therefore when punishment is imposed for the latter offence it covers the former as well and there cannot be a further punishment imposed for the former. The courts below have found the petitioner guilty of fraudu lent evasion of tax. If that stands-I have found that that must stand in the circumstances of this case-the conviction made for wilful non-payment of the same tax under Clause (1)(f) has to be dis charged.

5. In the result, I discharge the conviction of the petitioner and the sentence imposed on him under Section 46(1)(f) and affirm his conviction under Section 46(2)(c) of the Kerala General Sales Tax Act, 1963, in both the cases. As regards the sentence, it is pertinent to note that under the old Act the punishment for a fraudulent evasion of payment of tax was only 'a fine which may extend to one thousand rupees'. The penalty of imprisonment was for the first time imposed by the new Act. Considering all circumstances, I think that the ends of public justice will be met in the instant cases by the imposition of adequate fines on the petitioner. I therefore quash the sentence of one month's imprisonment imposed on the petitioner and sentence him to a fine of Rs. 500, with two weeks' simple imprison ment in default, in S.T. 592 of 1964 which gave rise to Crl. R.P. No. 309 of 1965 ; and to a fine of Rs. 2,000, with two months' simple imprisonment in default, in S.T. 591 of 1964 which gave rise to Crl. R.P. No. 308 of 1965. Time to pay the fines one month. Judgment accordingly.


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