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C.M. Francis and Co. Vs. State of Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax;Criminal
CourtKerala High Court
Decided On
Case NumberO.P. No. 87 of 1956 (K)
Judge
Reported in[1958]9STC8(Ker)
AppellantC.M. Francis and Co.
RespondentState of Kerala and ors.
Appellant Advocate K.K. Mathew, Adv.
Respondent AdvocateGovernment Pleader
DispositionPetition allowed
Excerpt:
.....been entered and the arrears of tax specified by the magistrate under section 19 of the travancore-cochin general sales tax act, 1125, and a warrant has been issued under section 386(1)(b) of the code of criminal procedure, 1898, it is still open to the state to commence proceedings under the travancore-cochin revenue recovery act, 1951, by virtue of section 13 of the travancore-cochin general sales tax act, 1125. the petitioner's contention is that the only course now open to the state is the one indicated in sub-section (3) of section 386 of the code of criminal procedure, 1898. 6. the mode of recovery contemplated by section 13 of the travancore-cochin general sales tax act, 1125, is apparently of general application and the mode of recovery indicated in section 19 of the said act..........the travancore-cochin revenue recovery act, 1951, as authorised by section 13 of the travancore-cochin general sales tax act, 1125. section 13 reads as follows :-- the tax assessed under this act shall be paid in such manner, and in such instalments, if any, and within such time, as may be specified in the-notice of assessment, not being less than fifteen days from the date of service of the notice. in default of such payment, the whole of the amount then remaining due may be recovered as if it were an arrear of land revenue. 2. the proceedings apparently proved infructuous, and a prosecution under section 19 of the travancore-cochin general sales tax act, 1125, was launched as c. c. no. 904 of 1955 in the court of the first class magistrate, ponkunnam. section 19 is in the following.....
Judgment:

M.S. Menon, J.

1. The petitioner is a firm consisting of four partners and registered under the Travancore Partnership Act (Act XII of 1115). Proceedings were started in 1954 for the recovery of the arrears of sales tax in respect of the years 1950-54 under the Travancore-Cochin Revenue Recovery Act, 1951, as authorised by Section 13 of the Travancore-Cochin General Sales Tax Act, 1125. Section 13 reads as follows :--

The tax assessed under this Act shall be paid in such manner, and in such instalments, if any, and within such time, as may be specified in the-notice of assessment, not being less than fifteen days from the date of service of the notice. In default of such payment, the whole of the amount then remaining due may be recovered as if it were an arrear of land revenue.

2. The proceedings apparently proved infructuous, and a prosecution under Section 19 of the Travancore-Cochin General Sales Tax Act, 1125, was launched as C. C. No. 904 of 1955 in the Court of the First Class Magistrate, Ponkunnam. Section 19 is in the following terms:--

Any person who,

(a) wilfully submits an untrue return or fails to submit a return as required by the provisions of this Act or of the rules made thereunder, or

(b) fails to pay within the time allowed, any tax assessed on him or any fee due from him, under this Act, or

(c) prevents or obstructs inspection or entry by any officer authorised under Section 17, in contravention of the terms thereof, or

(d) fraudulently evades the payment of any tax assessed on him, or any fee due from him under this Act, or

(e) fails to submit an application for registration as required by Section 10, Sub-section (1), or

(f) collects any amount by way of tax under this Act in contravention of the provisions of Section 11, Sub-section (1), or

(g) fails to pay the amounts specified in Section n, Sub-section (2), within the prescribed time, or

(h) wilfully acts in contravention of any of the provisions of this Act, shall, on conviction by a Magistrate of the First Class, be liable to a fine which may extend to one thousand rupees and in the case of a conviction under Clause (b), (d), (f) or (g), the Magistrate shall specify in the order the tax, fee or other amount, which the person convicted has failed or evaded to pay or has wrongfully collected, and the tax, fee or amount so specified shall be recoverable as if it were a fine under the Code of Criminal Procedure for the time being in force.

3. The partners admitted the offence and the First Class Magistrate, Ponkunnam, ordered as follows :--

A1 to 4 sentenced to pay a fine of Rs. 50 each and in default to undergo S.I. for one month each. A1 to 4 admit that they failed to pay, on demand by the competent authority, a sum of Rs. 1,01,716-4-3, due from them as sales tax for the years 1950 to 1954. This amount will be realised from A1 to 4, jointly or severally, individually or collectively under the provisions of the Criminal Procedure Code for realization of-criminal fines, as if it were a fine imposed by this Court on each accused individually and all of them together. Take steps for the realization. (Ex. A dated 18th October, 1955).

4. Sub-section (1) (b) of Section 386 of the Code of Criminal Procedure, 1898, empowers the Court which sentenced an offender to pay a fine to 'issue a warrant to the Collector of the District authorising him to realise the amount by execution according to civil process against the movable or immovable property, or both, of the defaulter' and Sub-section (3) of the said Section provides :--

Where the Courts issue a warrant to the Collector under Sub-section (i), Clause (b), such warrant shall be deemed to be a decree, and the Collector to be the decree-holder, within the meaning of the Code of Civil Procedure, 1908, and the nearest Civil Court by which any decree for a like amount could be executed shall, for the purposes of the said Code, be deemed to be the Court which passed the decree, and all the provisions of that Code as to execution of decrees shall apply accordingly :

Provided that no such warrant shall be executed by the arrest or detention in prison of the offender.

5. It is agreed that a warrant under Section 386(i)(b) of the Code of Criminal Procedure, 1898, has been issued and the only question for consideration is whether after a conviction has been entered and the arrears of tax specified by the Magistrate under Section 19 of the Travancore-Cochin General Sales Tax Act, 1125, and a warrant has been issued under Section 386(1)(b) of the Code of Criminal Procedure, 1898, it is still open to the State to commence proceedings under the Travancore-Cochin Revenue Recovery Act, 1951, by virtue of Section 13 of the Travancore-Cochin General Sales Tax Act, 1125. The petitioner's contention is that the only course now open to the State is the one indicated in Sub-section (3) of Section 386 of the Code of Criminal Procedure, 1898.

6. The mode of recovery contemplated by Section 13 of the Travancore-Cochin General Sales Tax Act, 1125, is apparently of general application and the mode of recovery indicated in Section 19 of the said Act read with Section 386 of the Code of Criminal Procedure, 1898, is one which applies only to cases like the one before us where there has been a prosecution and a conviction, and the arrears of tax has been specified, and a warrant issued by the Magistrate to the Collector. It is a well recognised canon of construction that where there is a specific provision' in a statute as well as a general provision, and a case is covered by the specific provision, it is the specific provision which must govern the case and not the general one.

7. Bindra deals with the matter as follows :

When there are two sections in a statute one dealing specifically with any particular subject which is also included in some of the provisions of another section, which is couched in general terms, the provisions of this latter section should not affect the provisions of the former section unless there is a specific provision to the contrary in the statute itself. In other words, where the same statute makes general provisions in respect of a particular subject-matter and makes specific provisions with respect to special category, the latter must prevail over the general. When a statute deals with a special case, it is not permissible to contend that the special case would also fall within the general provision in the statute : (Interpretation of Statutes, 2nd Edition, page 380).

8. The Government Pleader is unable to point out any process which is available to the State under the Travancore-Cochin Revenue Recovery Act, 1951, which is also not available under Section 19 of the Travancore-Cochin General Sales Tax Act, 1125, read with Section 386 of the Code of Criminal Procedure, 1898. He submitted, however, that even if a recovery in pursuance of Sub-section (3) of Section 386 of the Code of Criminal Procedure, 1898, becomes barred by efflux of time, it will still be open to the State to invoke the provisions of the Travancore-Cochin Revenue Recovery Act, 1951. This is only a matter for the distant future and we do not propose to consider it in this judgment. We also think it unnecessary to deal with the contention of the counsel for the petitioner to the effect that when a warrant has been issued under Section 386(1)(b) of the Code of Criminal Procedure, 1898, the liability merges into a decree and execution as if it were a decree is the only permissible procedure thereafter.

9. We are satisfied that all that we need do at present is to hold that so long as the procedure indicated in Sub-section (3) of Section 386 of the Code of Criminal Procedure, 1898, is available to the State, it is beyond its competence to commence proceedings under the Travancore-Cochin Revenue Recovery Act, 1951, and leave open for future adjudication the question as to whether, if and when the proceedings indicated in Section 386(3) of the Code of Criminal Procedure, 1898, becomes unavailable, it will still be open to the State to invoke the provisions of the Travancore-Cochin Revenue Recovery Act, 1951, or not.

10. In the light of what is stated above the petition has to be allowed and it is hereby allowed though in the circumstances of the case without any order as to costs.


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