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State of Kerala Vs. Kunju Kunju - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKerala High Court
Decided On
Case NumberCriminal Appeal No. 91 of 1962
Judge
Reported in[1963]14STC92(Ker)
AppellantState of Kerala
RespondentKunju Kunju
Appellant AdvocateState Prosecutor
Respondent Advocate D. Narayanan Potti and; N. Govindan Nair, Advs.
DispositionAppeal allowed
Cases ReferredState v. Awtar Krishna
Excerpt:
..... - 610 for the year 1959-60. the order of assessment as made on 9th december, 1960, and notice of demand was served and accepted by the accused on 20th february,1961.he was asked to aake the payment within 21 days and as he failed to do so the comlaint was filed on 11st august, 1961. 2. the service of the notice and the non-payment of the amount re not in dispute and are proved. section 19(b) penalizes he failure to pay within the time allowed any tax assessed on a person. the section does not require that the failure to make the payment must be dishonest or mala fide. all that is needed is a willful or deliberate failure as distinguished from an unintentional or inadvertent failure. the mere fact that the assessee has filed appeal against the assessment is not a good defence in a..........i think the contention should prevail. section 19(b) penalizes he failure to pay within the time allowed any tax assessed on a person. that provision is evidently intended to expedite collection of tax by a riminal prosecution.there is nothing in the section or the act to warrant the inference that the officers concerned are to wait for the assessee to exhaust his remedies in challenging the correctness of the ssessment to take action under the section.that would defeat the very purpose of the section by causing enormous delay in the collection of the taxes.the pendency of the appeal has also no bearing on the riiminal liability as the learned magistrate seems to think. according 0 the section an offence is committed whenever a person willfully ails to pay the tax due from him.....
Judgment:

Anna Chandy, J.

1. This is an appeal filed by the State against an order of acquittal.he respondent was charged for an offence under Section 19(b) of the General Sales Tax Act (XI of 1125) for non-payment of sales tax mounting to Rs. 610 for the year 1959-60. The order of assessment as made on 9th December, 1960, and notice of demand was served and accepted by the accused on 20th February,1961.He was asked to aake the payment within 21 days and as he failed to do so the comlaint was filed on 11st August, 1961.

2. The service of the notice and the non-payment of the amount re not in dispute and are proved.

3. The order of acquittal is based on the sole ground that due to he pendency of an appeal by the assessee questioning the validity of he assessment,the liability to pay the tax has not been finally adjudiated and as such the accused has not incurred criminal liability.

4. It is argued by the learned State Prosecutor that the fact that he assessee has got a right of appeal or that he has exercised that right does not in any way affect the fact that he has already committed an 'ffence when the tax assessed was not paid within the time specified.

5. I think the contention should prevail. Section 19(b) penalizes he failure to pay within the time allowed any tax assessed on a person. That provision is evidently intended to expedite collection of tax by a riminal prosecution.There is nothing in the section or the Act to warrant the inference that the officers concerned are to wait for the assessee to exhaust his remedies in challenging the correctness of the ssessment to take action under the section.That would defeat the very purpose of the section by causing enormous delay in the collection of the taxes.The pendency of the appeal has also no bearing on the riiminal liability as the learned Magistrate seems to think. According 0 the section an offence is committed whenever a person willfully ails to pay the tax due from him under the Act within the time allowed.The section does not require that the failure to make the payment must be dishonest or mala fide. All that is needed is a willful or deliberate failure as distinguished from an unintentional or inadvertent failure. In Public Prosecutor v. K. Sesha Shet [1953]4 S.T.C. 294 while dealing with A similar prosecution under Section 15(b) of the Madras General Sales Tax Act of 1939, the Madras High Court held :

Under section I5(b) when any person fails to pay within the time allowed any tax assessed on him by the assessing authority, viz., Deputy Commercial Tax Officer or Assistant Commercial Tax Officer, then the offence has been committed and he can be prosecuted. There is no need for the Deputy Commercial Tax Officer or the Assistant Commercial Tax Officer to wait for the assessee to exhaust all his remedies by way of appeal to the Commercial Tax Officer and the Sales Tax Tribunal.

The same was the position taken by the Allahabad High Court in State v. Awtar Krishna [1957]8 S.T.C.244 where the learned Judges observed that:

The mere fact that the assessee has filed appeal against the assessment is not a good defence in a prosecution for non-payment of the tax due from him within the time allowed This Court has also taken the same view in the judgment in Criminal Appeal No. 118 of 1962.

6. The order of acquittal is erroneous and has to be set aside. It is set aside and the respondent is convicted under Section 19(b) and is sentenced to pay a fine of Rs. 25 and in default to undergo simple imprisonment for two,weeks. He will in addition pay the tax Rs. 610 which he has failed to pay within a month from this date. In case of non-payment the amount shall be recovered from him under the provisions of the Criminal Procedure Code as if it were a fine.


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