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Cheria Bappu Haji Vs. Sales Tax Officer - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKerala High Court
Decided On
Case NumberO.P. No. 1985 of 1969
Judge
Reported in[1971]28STC522(Ker)
AppellantCheria Bappu Haji
RespondentSales Tax Officer
Appellant Advocate K.P. Radhakrishna Menon, Adv.
Respondent AdvocateGovernment Pleader
DispositionPetition dismissed
Cases ReferredRayalseema Constructions v. Deputy Commercial Tax Officer A.I.R.
Excerpt:
.....moved the high court under article 226 of the constitution challenging the orders of the income-tax officer on the ground of violation of natural justice and also of the mandatory provision under section 35. the petition was dismissed by the high court, holding that the error was the result of a patent failure on the part of the income-tax officer to add the penal interest to the tax, which the income-tax officer could correct, and that the failure to issue the notice did not cause any prejudice to the appellants, as the result would have been the same even if notice was issued. i am, therefore, constrained to uphold the petitioner's contention that the order exhibit p-2 is bad, as it was made without notice as required by section 43 of the act. this contention is based on the..........above amount of tax against a sum of rs. 294.39 which he had already paid as tax. the sales tax officer noticed the arithmetical error, which he had made in calculating the tax as per his order of assessment. he rectified the same and passed an order, exhibit p-2 dated 9th november, 1967, showing the correct figures, and requiring the petitioner to pay a sum of rs. 604.54 after setting off the above-said sum of rs. 294.39 which he had already paid. the petitioner kept quiet. the sales tax officer, therefore, moved for the recovery of the tax due from the petitioner as arrears of land revenue. accordingly, the tahsildar (taxation), ottapalam, the second respondent, distrained the petitioner's cattle, and notified them for sale on 5th april, 1969. thereupon the petitioner filed this.....
Judgment:

M.U. Isaac, J.

1. The petitioner was assessed for the year 1965-66 by the Sales Tax Officer, Ottapalam, the first respondent, under the Central Sales Tax Act, 1956. His turnover was determined at Rs. 14,974.01, of which Rs. 7,480.91 was taxed at 2 per cent. and Rs. 7,493.10 was taxed at 10 per cent. Thus the tax payable by him was Rs. 898.93, consisting of Rs. 149.62 at the 2 per cent. rate and Rs. 749.31 at the 10 per cent. rate. But in calculating the tax, the Sales Tax Officer showed the tax payable at 10 per cent. as Rs. 74.93, instead of Rs. 749.31; and he issued a notice of final assessment and refund order, exhibit P-1 dated 23rd September, 1966, showing the total tax payable by the petitioner as Rs. 224.55 and allowing him a refund of Rs. 69.84, after setting off the above amount of tax against a sum of Rs. 294.39 which he had already paid as tax. The Sales Tax Officer noticed the arithmetical error, which he had made in calculating the tax as per his order of assessment. He rectified the same and passed an order, exhibit P-2 dated 9th November, 1967, showing the correct figures, and requiring the petitioner to pay a sum of Rs. 604.54 after setting off the above-said sum of Rs. 294.39 which he had already paid. The petitioner kept quiet. The Sales Tax Officer, therefore, moved for the recovery of the tax due from the petitioner as arrears of land revenue. Accordingly, the Tahsildar (Taxation), Ottapalam, the second respondent, distrained the petitioner's cattle, and notified them for sale on 5th April, 1969. Thereupon the petitioner filed this writ petition to quash exhibit P-2 and direct the second respondent to release the cattle.

2. The contention of the petitioner is that exhibit P-2 is bad, as it was made without notice to the petitioner as required by Section 43 of the Kerala General Sales Tax Act, 1963. That section reads :

43. Power to rectify any error apparent on the face of the record.--(1) An assessing authority or an appellate or revising authority (including the Appellate Tribunal) may, on application or otherwise, at any time within three years from the date of any order passed by it, rectify any error apparent on the face of the record :

Provided that no such rectification which has the effect of enhancing an assessment or any penalty shall be made unless such authority has given notice to the person affected and has allowed him a reasonable opportunity of being heard. (2) Where such rectification has the effect of reducing an assessment or penalty, the assessing authority shall make any refund to the person entitled thereto.

(3) Where any such rectification has the effect of enhancing an assessment or penalty, the assessing authority shall give the dealer or other person a revised notice of assessment or penalty, and thereupon the provisions of this Act and the rules made thereunder shall apply as if such notice had been given in the first instance.

Explanation.--The liability to pay the tax or other amount will arise only from the date specified in the revised notice.

Admittedly, no notice was given to the petitioner before exhibit P-2 was passed; but the learned Government Pleader contended that notice was not necessary as the error rectified was only an obvious arithmetical error, which did not have the effect of enhancing the assessment, and that all that was done by exhibit P-2 was to show the correct amount of tax payable under the original assessment. The argument is quite attractive; but I think that it cannot be accepted in the light of the decision of the Supreme Court in Chockalingam and Meyyappan v. Commissioner of Income-tax [1963] 48 I.T.R. 34 (S.C.). In that case, the appellants were assessed as individuals, and notices of final assessment and demand were issued to them accordingly. They had not paid advance tax as required by Section 18A of the Indian Income-tax Act, 1922; and the Income-tax Officer by oversight omitted to add to the tax payable by them as required by Sub-section (8), interest payable under Sub-section (6) for non-payment of the advance tax. When he found out the error, he passed orders rectifying the same and calling upon the appellants to pay the amount of interest payable by them. That was done, without issuing notice under Section 35 of the Act. The appellants moved the High Court under Article 226 of the Constitution challenging the orders of the Income-tax Officer on the ground of violation of natural justice and also of the mandatory provision under Section 35. The petition was dismissed by the High Court, holding that the error was the result of a patent failure on the part of the Income-tax Officer to add the penal interest to the tax, which the Income-tax Officer could correct, and that the failure to issue the notice did not cause any prejudice to the appellants, as the result would have been the same even if notice was issued. The Supreme Court disagreed with the above view, and set aside the orders of the Income-tax Officer upholding the contention of the appellants. Section 35 of the Indian Income-tax Act, 1922, corresponds to Section 43 of the Kerala General Sales Tax Act, 1963. Both in the case before the Supreme Court and in the instant case, the errors were patent on the record, and there was no scope for any dispute that the amounts claimed were rightly due from the assessees concerned. I am, therefore, constrained to uphold the petitioner's contention that the order exhibit P-2 is bad, as it was made without notice as required by Section 43 of the Act.

3. The next question for my consideration is whether I should exercise my jurisdiction under Article 226 of the Constitution on the facts of this case. Exhibit P-2 is dated 9th November, 1967, and the petitioner has filed this petition on 3rd April, 1969. I am not inclined to accept his explanation that he could not move this Court earlier, as he was suffering from some disease, which he does not disclose. If he was aggrieved by exhibit P-2, he had the remedy by way of revision under Section 36; and there is no reason why he could not resort to it. I, therefore, decline to interfere with the order exhibit P-2, on the ground of delay and latches on the part of the petitioner in invoking the jurisdiction of this Court.

4. The petitioner's counsel however, contended that the petitioner was entitled to have the proceedings for recovery of the tax due under exhibit P-2 quashed, as the said proceedings are according to him without authority of law. This contention is based on the premises that exhibit P-2 is bad. I am unable to accept this contention. Exhibit P-2 is not an order without jurisdiction. It may be that it is liable to be set aside. So long as it is not set aside, the proceedings on the basis of the said order would not be one without authority of law. In support of his contention that the petitioner can seek to quash or resist the proceedings for recovery of tax payable under such an order without seeking to get the said order quashed, he referred me to the decision of the Supreme Court in Khurai Municipality v. Kamal Kumar A.I.R. 1965 S.C. 1321. Reliance was made on the following passage in that decision:

Under Article 265 of the Constitution no tax shall be levied or collected except by authority of law. This clearly implies that the procedure for imposing the liability to pay tax has to be strictly complied with. Where it is not so complied with the liability to pay the tax cannot be said to be according to law.

That was a case where the assessment itself was attacked on the ground that it was not made in compliance with the provisions of the law, nor by the competent authority. The attack was upheld and the assessment was quashed. The above statement does not support the contention that the recovery proceedings can be attacked, so long as the assessment pursuant to which the said proceedings are taken remains in force.

5. Reference was also made to another decision of the Supreme Court in Deputy Commercial Tax Officer v. Rayalaseema Constructions [1996] 17 S.T.C. 505 (S.C). It is true that this is a case where proceedings taken for recovery of tax due under certain orders of assessments were quashed; but the assessments related to turnover of works contract, which, as already held by the Supreme Court, did not involve any sale of goods; and the proceedings to recover sales tax on such transactions would obviously be without authority of law. In such a case, the assessments would also be without authority of law; and such assessments cannot afford any basis for the recovery proceedings. The above decision does not, therefore, help the petitioner. Counsel for the petitioner referred me also to certain passages in the decision of the Madras High Court in Rayalseema Constructions v. Deputy Commercial Tax Officer A.I.R. 1959 Mad. 382. The above Supreme Court case is an appeal from this decision; and it is not, therefore, necessary to read those passages. Sufficient to say that this decision also does not help the petitioner, as the impugned proceedings related to recovery of a tax which the State was not authorised to collect.

6. In the result, this writ petition is dismissed. I make no order as to costs.


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