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Punalur Paper Mills Ltd. and anr. Vs. District Collector and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKerala High Court
Decided On
Case NumberO.P. No. 7407 of 1985-B
Judge
Reported in[1985]60STC193(Ker)
AppellantPunalur Paper Mills Ltd. and anr.
RespondentDistrict Collector and ors.
Appellant Advocate K.A. Nayar, Adv.
Respondent Advocate P.V. Ayyappan, Adv. General
DispositionPetition allowed
Cases Referred(vide Ravulu Subba Rao v. Commissioner of Income
Excerpt:
- - accordingly the first respondent served on the second petitioner a notice under section 65 of the kerala revenue recovery act, 1968, for short, the recovery act, calling upon him to show cause why a warrant of arrest shall not be issued against him since the company has failed to remit the said dues. to be a defaulter under the sales tax act, a dealer who has been assessed to tax, should have failed to pay the said tax within the time stipulated in the notice of demand. 'in interpreting a fiscal statute the court cannot proceed to make good the deficiencies, if there be any, in the statute;.....the first respondent served on the second petitioner a notice under section 65 of the kerala revenue recovery act, 1968, for short, the recovery act, calling upon him to show cause why a warrant of arrest shall not be issued against him since the company has failed to remit the said dues. the second petitioner by his reply dated 29th june, 1985 has given the explanation thus:i am in receipt of your letter no. r8 20586/84 dated the 19th june, 1985. the amounts mentioned in your letter are due and payable by punalur paper mills ltd. on account of sales tax, provident fund, esi, etc. for liability of a public limited company the directors or officers cannot be held responsible. such liabilities are realised from the company's assets only, including government revenue. in the course of.....
Judgment:

Radhakrishna Menon, J.

1. The second petitioner is the Managing Director according to the respondents, of the first petitioner-company which is a 'registered dealer' within the meaning of the Kerala General Sales Tax Act, for short, the Sales Tax Act.

2. By way of arrears of sales tax, employees' provident fund and employees' state insurance, the company had to pay a sum of Rs. 16,01,659.10 to the Government.

3. May be that the Revenue was not successful in realising the arrears of tax, etc., from the company, and that perhaps may be the reason for the Revenue to initiate proceedings for recovery of the aforesaid dues from the second petitioner. Accordingly the first respondent served on the second petitioner a notice under Section 65 of the Kerala Revenue Recovery Act, 1968, for short, the Recovery Act, calling upon him to show cause why a warrant of arrest shall not be issued against him since the company has failed to remit the said dues. The second petitioner by his reply dated 29th June, 1985 has given the explanation thus:

I am in receipt of your letter No. R8 20586/84 dated the 19th June, 1985. The amounts mentioned in your letter are due and payable by Punalur Paper Mills Ltd. on account of sales tax, provident fund, ESI, etc. For liability of a Public Limited Company the Directors or officers cannot be held responsible. Such liabilities are realised from the company's assets only, including Government revenue.

In the course of the enquiry it would appear that the second petitioner agreed to pay a sum of Rs. 3,40,143 towards the employees' provident fund and employees' state insurance dues, while he claimed a sum of Rs. 1.5 crores by way of refund due to the company from the Government. He had also stated that the refund claimed would be sufficient security for the balance tax due by the company. The petitioners admittedly have paid the above Rs. 3,40,143 and the balance tax due from the first petitioner-company at the relevant time was only Rs. 10,59,000. This represented the arrears of sales tax.

4. After enquiry, the first respondent found as follows :

There is no justification for not remitting this to Government. He has no convincing explanation as to why the sales tax amount already collected is being withheld. In the circumstances, there is no reason to believe that the defaulter is not wilfully refusing to pay to Government the amount which he owes, Public interest warrants that he be committed to civil prison.

I, therefore, find that Sri L. N. Dalmia, Managing Director, Punalur Paper Mills, Punalur is to be arrested and committed to civil prison for a period of 30 days for wilfully evading payment of arrears due to Government.

5. The second petitioner accordingly was arrested and put in civil prison.

6. Exhibit P3 is under challenge in this original petition.

7. Before I go into the merits of the case, I shall state the law, applicable to the case. Under the Sales Tax Act, a registered dealer whose total turnover for the year is not less than the amount specified in Section 5 of the Act, is bound to pay tax on the said taxable turnover for that year. The tax, a dealer is liable to pay, is determined in terms of Section 16 of the Act. The tax thus assessed shall be paid by the assessee, that is the dealer, within the time specified in the notice of demand, the Revenue would serve on him in form No. 14B prescribed under rules 20 and 21. If the assessee commits default in paying the tax in terms of the demand notice, the assessee will be declared a defaulter and on his being declared a defaulter, recovery proceedings will be initiated against him. Section 23 provides for recovery of the tax from a defaulter. The section provides that if default is made in paying the tax according to the notice of demand, the whole amount outstanding on the date of the default shall become immediately due and shall be a charge on the properties of the person or persons liable to pay the tax or other amount under the Sales Tax Act. The modes of the recovery of tax are as prescribed under Sub-section (2) of Section 23. Here, the mode of recovery adopted by the Revenue is one that falls under Clause (a) of Sub-section (2) of Section 23. It reads :

Any tax assessed or any other amount due under this Act from a dealer or other person may, without prejudice to any other mode of recovery, be recovered-- (a) as if it-were an arrear of land revenue.

By virtue of the above section, the Revenue can initiate proceedings under the Recovery Act, for recovery of 'any tax assessed' or 'any other amount due under the Sale Tax Act' from a 'dealer' or 'other person'. Here we are concerned only with the recovery of the tax assessed and found due by the company, the first petitioner. According to the respondents, the second petitioner is equally liable for the said tax, due by the company. That is how the first respondent initiated proceedings, under Section 65 of the Recovery Act against the second petitioner, which resulted in exhibit P3 order.

8. The question thus arising for consideration is whether the second petitioner can be treated as a defaulter within the meaning of the Sales Tax Act. To be a defaulter under the Sales Tax Act, a dealer who has been assessed to tax, should have failed to pay the said tax within the time stipulated in the notice of demand. In other words, until an assessee (dealer) is declared a defaulter, recovery proceedings cannot be initiated against the said person.

9. It is not the case of the respondents that the Sales Tax Act by any provision therein has fastened any liability on a Director or the Managing Director of a company to pay the tax, due by the company. For that matter, there is no provision in the Sales Tax Act making the Director or the Managing Director liable for the tax due by the company. In short, the Sales Tax Act is silent as to the liability of a Director or a Managing Director for the tax due by the company. If that be so, could it be said that the proceedings initiated for recovery of the tax due by the first petitioner-company from the second petitioner, the Managing Director, are valid.

10. It should be remembered that we are considering the scope of a codifying fiscal enactment. 'In interpreting a fiscal statute the Court cannot proceed to make good the deficiencies, if there be any, in the statute; it shall interpret the statute as it stands and in case of doubt, it shall interpret it in a manner favourable to the taxpayer. In considering a taxing Act, the Court is not justified in straining the language in order to hold a subject liable to tax': State of Punjab v. Jullundur Vegetables Syndicate AIR 1966 SC 1295.

11. The Kerala General Sales Tax Act, as seen from the preamble, is one consolidating and amending the law pertaining to sales tax. It is axiomatic that while interpreting a consolidating Act, it must always be borne in mind that such Act is a complete code by itself and exhaustive of the matters mentioned therein. The rights and liabilities of parties governed by a consolidating enactment are determined only with reference to the provisions contained in the said enactment and it would be repugnant to the character of such enactment to add to the said rights and liabilities by referring to other laws (vide Ravulu Subba Rao v. Commissioner of Income-tax, Madras AIR 1956 SC 604). Unless provisions of other laws are expressly or by necessary implication incorporated in a codifying and amending Act such provisions have no relevance to decide questions directly falling under the codifying statute. Jullundur Vegetables Syndicate case AIR 1966 SC 1295 supports this view. It therefore follows that in the absence of a specific provision in the Sales Tax Act fastening liability on the Director or the Managing Director of a company for the tax due by the company, I am of the view, that no proceedings can be initiated against the Director or the Managing Director for recovery of the said dues.

12. If that is not possible, how could the proceedings initiated by the first respondent under Section 65 of the Revenue Recovery Act to recover the tax aforesaid from the second petitioner, be valid Section 65 of the Revenue Recovery Act has to be read along with Section 23(2)(a) of the Sales Tax Act. De hors Section 23(2)(a), there is no scope for applying Section 65 of the Revenue Recovery Act in the case. The proceedings contemplated by Section 65 of the Recovery Act, therefore, are analogous to execution proceedings and the District Collector who is empowered to recover the sales tax arrears treating the same, by a fiction as an arrear of land revenue by Section 23(2)(a) of the Sales Tax Act, is in the position of an executing Court with power to commit a defaulter to civil prison. The District Collector therefore cannot go behind the order of assessment which is sought to be executed by resort to Section 65. He has to execute the order of assessment as it is. And therefore unless the first respondent establishes that the person against whom recovery proceedings are initiated, is a defaulter within the meaning of the Sales Tax Act, the proceedings under Section 65 of the Revenue Recovery Act is liable to be vacated. In this connection, it is relevant to note that the first respondent has conceded that the amounts sought to be recovered from the second petitioner represent the arrears of tax assessed and found due by the first petitioner-company. Exhibit P3 proceedings of the District Collector therefore is one passed without jurisdiction and hence void ab initio. It is non est.

13. The learned Advocate-General, however, submits that the second petitioner, inasmuch as he has been imprisoned in civil prison, cannot be set free even if this Court is to quash the order pursuant to which, he has been directed to be kept in civil prison. In support of this argument, he referred to the provisions contained in Sub-section (5) of Section 4 of the Kerala High Court Act. The said section provides that an application for the exercise of the powers conferred by Section 491 of the Code of Criminal Procedure, 1898 or by Clause (1) of Article 226 of the Constitution of India where such power relates to the issue of a writ in the nature of habeas corpus, can be dealt with only by a Bench of two Judges. This section thus prescribes the procedure that a petition for the issue of a writ in the nature of habeas corpus shall be heard by a Bench of two Judges. The learned Advocate-General, however, submits that when once the warrant is executed and a person is put in the civil prison, the only remedy available is to move for the issue of a writ in the nature of habeas corpus. This argument is without any substance.

14. The second petitioner has been put in the civil prison pursuant to an order passed under Section 65 of the Revenue Recovery Act. On a declaration that exhibit P3 order is void, the second petitioner is entitled to the benefit of the said declaration. It is all the more so because by ordering arrest and detention of the second petitioner in civil prison in enforcement of a void order, the first respondent has virtually encroached upon the 'personal liberty', *'. e., the fundamental right enshrined under Article 21 of the Constitution. In short, the power of this Court to pass the consequential order is not controlled by Section 4(5) of the High Court Act. To put it shortly, if this Court in the exercise of jurisdiction under Article 226 is competent to demolish an illegal order then it follows that this Court is equally competent to pass a consequential order restoring the status quo ante. I am therefore of the view, that the argument that the matter can only be dealt with by a Bench of two Judges is devoid of merit. The same accordingly is rejected.

The original petition is allowed. Exhibit P3 accordingly is quashed and I direct the respondents to set the second petitioner free, forthwith.

Serve the operative portion of the judgment to the respondents by Special Messenger.


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