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In Re: Gigina Pasha Saheb - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Case NumberCriminal Revn. Case No. 1048 and Cri. Revn. Petn. No. 983 of 1949
Judge
Reported inAIR1950Mad619
ActsMadras General Sales Tax Act, 1939 - Sections 15 and 16A
AppellantIn Re: Gigina Pasha Saheb
Appellant AdvocateR. Gopalaswami Aiyangar, Adv.
Respondent AdvocateAsst. Public Prosecutor
Cases ReferredApparao v. King
Excerpt:
.....15 and 16a of madras general sales tax act, 1939 - whether in prosecution under section 15 (b) validity of assessment can be questioned by party where turnover on which person is assessed relates wholly to period before 01.01.1948 and assessment made before 01.01.1948 but prosecution instituted after 01.01.1948 when new section 16a came into force - assessment levied on turnover before 01.01.1948 can be questioned by accused both regarding its legality and its quantum - mere fact of prosecution being after 01.01.1948 but relating wholly or partly to default in payment of tax based on turnover before 01.01.1948 cannot alter position in law and deprive accused person of valuable right - held, petitioner allowed to contest validity including legality and quantum of assessment regarding..........on which the assessment is based relates to the period before 1st january 1948; and (3) where the turnover, assessment and prosecution are all after 1st january 1948. 2. i shall take the last case first. i agree with the learned public prosecutor that, as section 16a stands, the validity (including therein both the legality and the quatum) of the assessment cannot be questioned in any criminal court by a party, or even gone into by the court itself, in any prosecution or proceeding, if the assessment, turnover and the prosecution are all after 1st january 1948. i am not impress-ed with the argument of mr. gopalaswami aiyangar, for the petitioner, that section 16a is a penal and fiscal enactment, and that the liberty and property of the subjects ought not to be en-dangered in a criminal.....
Judgment:
ORDER

Panchapakesa Ayyar, J.

1. The only three points for determination in this case are whether in a prosecution under Section 15(b), Madras General Sales Tax Act, the validity of the assessment can be questioned by a party or gone into by a criminal Court in any prosecution or other proceeding before it, (1) where the turnover on which the person is assessed relates wholly to the period before 1st January 1948 and the assessment is made before 1st January 1948 but the prosecution is instituted after 1st January 1948 when the new Section 16A came into force; (2) when the assessment is made after 1st January 1948, as in this case, but a portion of the turnover on which the assessment is based relates to the period before 1st January 1948; and (3) where the turnover, assessment and prosecution are all after 1st January 1948.

2. I shall take the last case first. I agree with the learned Public Prosecutor that, as Section 16A stands, the validity (including therein both the legality and the quatum) of the assessment cannot be questioned in any criminal Court by a party, or even gone into by the Court itself, in any prosecution or proceeding, if the assessment, turnover and the prosecution are all after 1st January 1948. I am not impress-ed with the argument of Mr. Gopalaswami Aiyangar, for the petitioner, that Section 16A is a penal and fiscal enactment, and that the liberty and property of the subjects ought not to be en-dangered in a criminal case by such reckless provisions like Section 16A, which are, according to him, ultra vires. He urged vehemently that accused persons will be bound hand and foot and handed over to the criminal Courts, like sacrificial sheep, to be automatically sentenced, if the learned Public Prosecutor's argument is accepted. I cannot agree. Whatever the reasonableness or otherwise of a provision like the new Section 16A, I am satisfied that it is well within the powers of the Legislature and is not ultra vires. Nor does Mr. Gopalaswami Aiyangar's appeal to the liberties given to an accused, under the Criminal Procedure Code, at a trial, impress me. The Criminal Procedure Code, of course, says nothing regarding the quantum or quality of proof of the validity of the assessments in cases under the General Sales Tax Act, as, when it was framed, this Act was unknown and un-contemplated. It requires the prosecution, no doubt, to prove its case. But Section 16A makes an assessment on a turnover after 1st January 1948 itself conclusive proof that such assessment is valid, something like the conclusive presumption regarding the legitimacy of children born in wedlock under Section 112, Evidence Act, when there is access. The usual rule of interpretation in such cases is that a special law regulating a special thing will take precedence over the general provisions of common or statute law, unless the special law is itself invalid, or ultra vires. General and roaming arguments based on general principles, like penal provision and fiscal provision, cannot be of much weight when the Legislature, after a full discussion, has passed an enactment like Section 16A affecting the property of the subject and his liberty also in case he defaults. So, before an enactment of the Legislature, like Section 16A, is held to be ultra vires there must be full proof that it is really ultra vires, Merely stating that a subject is deprived of a part of his wealth, and is also liable to imprisonment in case he defaults in the payment of tax will not do. All taxes have these unpleasant consequences. It is also not as if the subject is left remediless. Generally, the assessment of sales tax is made by the Assistant or Deputy Commercial Tax Officer, and an appeal is provided for to the commercial tax officer, and, later on, a revision to the Board of Revenue, which is a final Court in some revenue and other cases, and which consists of persons of great experience and well acquainted with oases and laws. In several countries, like France, there are administrative Courts, like the Board of Revenue in this case, whose decision is final in Borne matters. That cannot be, therefore, taken as a grievance, or as a proof of the ultra vires nature of Section 16A. Of course, if the contemplated sales tax tribunal fructufies, it may be a better Court for hearing and determining appeals, as it will consist only of judicial officers; but that cannot be any reason for holding that the present procedure of appeal and revision is rotten or invalid or that Section 16 A is ultra vires. I have not been shown any valid reason, much less a ruling of any High Court, holding Section 16A to be ultra vires. I hold that it is not ultra vires.

3. The next question is whether Section 16 A will apply to cases of assessmet made before 1st January 1948 or to assessments made after 1st January 1948 regarding the portion of the turnover before 1st January 1948 on which the assessment is based. Here, we are in a different terrain. Before 1st January 1948, any person prosecuted under Section 15 (b), for not paying the gales tax assessed, could show that the assessment was not valid, both regarding its legality as well as its quantum. I cannot agree with Mr. Gopalaswami Aiyangar's argument that the word 'valid' even in the present Section 16A, covers only the legality of the assessment, and not its quantum. 'Valid' means what it implies, namely, that it is not invalid in any portion of it, either in quality or in quantity. It is often the case, for instance, that a promissory note is held to be valid and binding, say, on a minor, regarding a portion of the consideration, and not valid and binding regarding the other portion. If the promissory note debt were held to be wholly valid, the minor would be bound wholly by the debt. It cannot be that Section 16A contemplates only the validity regarding the legality, and leaves the whole question of quantum, even regarding the turnover and assessment after 1st January 1948, open. The object of enacting Section 16A seems to me to be to allow no liberty to question the legality or the quantum of the assessment to an accused when prosecuted for non payment in a criminal Court and to leave him only to his remedies by way of appeal to the Commercial Tax Officer and revision to the Board of Revenue, and possibly also a misericordia domini regis (mercy) petition to the Government in the last resort, and not to agitate its validity regarding the legality or quantum in the criminal Court when being prosecuted there for default.

4. But, of course, it does not follow that I agree with the contention of the learned Public Prosecutor that even regarding the assessment on the turnover before 1st January 1948, m person, on being prosecuted, has lost his old right of disputing that portion of the assessment. Under the general law, no man loses an existing right unless deprived of it specifically and unequivocally by the new enactment. The petitioner had, admittedly, the right before the enactment of Section 16A, on 1st January 1948, to dispute the legality and the quantum of the assessment on the turnover before 1st January 1948. This turnover also, it must be noted, is not a fixed or admitted or unalterable figure in the present case. The Deputy Commercial Tax Officer fixed 'the turnover of the petitioner from 1st April 1947 to 31st December 1947 at Rs. 32,655; but, in appeal the Commercial Tax Officer reduced that to Rs. 30.000, on what basis it is not quite clear; perhaps it was only a case of 'rounding off' as urged by the petitioner's counsel, on rough and ready sarasari principles. That being so, it is obvious that there is some scope for this petitioner to argue that the assessment imposed on him for the period between 1st April 1947 and lat January 1948 is not correct and that he is able to prove that the turnover during that period was considerably less and that only a proportionately lesser tax could have been imposed on him for that period. In my opinion, the date of the assessment is not very material, when considering this question, but only the period of the turnover for which the assessment is made, namely, whether the turnover relates to a period before 1st January 1948. Whenever the turnover on which the assessment is made relates to a period before 1st January 1948,I am of opinion that the person prosecuted under Section 15 (b), can, despite the new Section 16A, which does not take away such well-established old rights specifically, dispute the validity of that portion of the assessment based on that portion of the turnover, both regarding its legality and regarding its quantum.

5. The judgment of Rajagopalan J., in Apparao v. King, 1948 M. W. N. 816 : A. I. R. 1949 Mad. 418 will not help the Public Prosecutor's contention. Rajagopalan J., has not considered this question, and cannot be taken to have decided this question adversly to the petitioner's contention. He merely held in that case that Sections 15 (b) and 16A, as amended by Act XXV [25] of 1947, are not retrospective, and that Section 16A does not bar an investigation of the validity of the tax assessed where the alleged offence was committed before 1st January 1948, when, the amendment came into force. This judgment may even help the petitioner's contention as it recognises the right to question the validity of the assessment in a prosecution before 1st January 1948. The learned Public Prosecutor urges that the wording of Section 16A is, such that the validity of the assessment cannot be questioned in any criminal Court in any prosecution or other proceedings instituted after 1st January 1948, when it came into force, and that it is only the dates when this default to pay the tax occurred and the prosecution is instituted that are material. He contends that if the default occurred and if the prosecution is instituted after 1st January 1948, as in this case, it is immaterial whether the turnover on which the assessment is based relates wholly or partly to the period before 1st January 1948, and that the accused, in such a case, cannot question the validity of the assessment or invite the Court to go into it, and that the Court also cannot go into it suo motu, I cannot accept this argument which will leave a powerful weapon in the hands of some people who may institute a prosecution after 1st January 1948 irrespective of whether the assessment was based on a turnover before 1st January 1948 and was, under the law, liable to be questioned. So, it will be, in my opinion, not either a valid or a desirable canon. I hold that an assessment levied on a turnover before 1st January 1948 can undoubtedly be questioned by the accused both regarding its legality and its quantum. The mere fact of the prosecution being after 1st January 1948, but relating wholly or partly to a default in the payment of the tax based on a turnover before 1st January 1948, cannot, in my opinion, alter the position in law and deprive an accused person, who could question the validity of that portion of the assessment before, of that valuable right, especially in a criminal proceeding where he is sought to be convicted and sentenced.

6. In the result, I modify the lower Court's order by allowing the petitioner to contest the validity, including the legality and the quantum, of the assessment regarding the turnover for the period before 1st January 1948, but not regarding the validity of the assessment concerning the turnover after 1st January 1948.


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