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The Assistant Commercial Tax Officer Poonamallee Check Post and anr. Vs. W.H. Deeth and Company and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax;Criminal
CourtChennai High Court
Decided On
Case Number Writ Appeal Nos. 172 and 348 of 1972
Judge
Reported in[1975]35STC396(Mad)
AppellantThe Assistant Commercial Tax Officer Poonamallee Check Post and anr.
RespondentW.H. Deeth and Company and anr.
Appellant Advocate K. Venkataswami, the Additional Government Pleader
Respondent Advocate C.S. Chandrasekara Sastri, Adv.
DispositionAppeal allowed
Excerpt:
- .....of securing the revenue due under the act. in that sense, the offences created by section 45 are revenue offences and in dealing with them, one should not have the same approach as to offences under the indian penal code or other offences as such. the object of conviction and punishing penal offences is to correct the offender and also to hold him as an example in order to prevent offences. under the revenue laws, offences are created in order to see that the provisions for observance of the requirements of the revenue laws both for maintenance and production of documents and so forth and also payment of tax are strictly observed. the tax is levied on the dealer. the incidence is on him. we are not thinking of its ultimate effect in certain cases on the consumers. while the liability.....
Judgment:

Veeraswami, C.J.

1. These are two connected appeals. The driver of a lorry carrying goods was found not to be in possession of the documents mentioned in Section 44 of the Tamil Nadu General Sales Tax Act, 1959. In one of these appeals, the offence was compounded and the driver paid the fine. But in the other, against the notice served on the driver, the owner of the goods appeared and offered to pay the fine. But the departmental officials took the view that, since the notice had been given to the driver, no receipt could be given to the owner of the goods. The owner of the goods in each of these cases filed petitions under Article 226 of the Constitution which were allowed. The revenue has brought these appeals.

2. On behalf of the appellant reliance is placed upon a judgment of a Division Bench of this Court in Writ Petitions Nos. 2938 to 2940 of 1970 to which one of us was a party. In that case, agreeing with the Deputy Commissioner of Commercial Taxes, it was held that when the proceedings were against the driver, the owner of the goods had no locus standi to present the petition. Another ground was mentioned by the Bench, namely, that the petition could not be entertained at the particular stage. Though the State is entitled to rely on this judgment, we find that it was a case dismissed in limine at the admission stage and did not receive full consideration.

3. The relative provisions to be considered are Sections 44 to 46. The first of them requires the owner or other person in-charge of a goods vehicle to carry with him the bill of sale or delivery note, the goods vehicle record or trip sheet and such other documents as may be prescribed, which relate to the goods under transport and which contain such particulars as may be prescribed. These documents are further required to be submitted to the Commercial Tax Officer having jurisdiction over the area in which the goods were delivered within such time as may be prescribed. Section 45(2)(d) makes penal any wilful act in contravention of any of the provisions of the Act and on conviction the offender is made liable to a fine which may extend to one thousand rupees. A subsequent conviction attracts simple imprisonment extending to six months or a fine which may extend to two thousand rupees or both. Section 46 allows composition of offences. The prescribed authority, either suo motu or otherwise, may give an option to pay the fine within a specified period by way of composition of offences in the manner and in the circumstances indicated therein. It may be seen that these provisions have been made with a view to check evasion and for the purpose of securing the revenue due under the Act. In that sense, the offences created by Section 45 are revenue offences and in dealing with them, one should not have the same approach as to offences under the Indian Penal Code or other offences as such. The object of conviction and punishing penal offences is to correct the offender and also to hold him as an example in order to prevent offences. Under the revenue laws, offences are created in order to see that the provisions for observance of the requirements of the revenue laws both for maintenance and production of documents and so forth and also payment of tax are strictly observed. The tax is levied on the dealer. The incidence is on him. We are not thinking of its ultimate effect in certain cases on the consumers. While the liability is on the dealer, in order to make that liability effective and realisable, others who are connected with the transaction of the dealer are also required to do certain things. But it must be remembered that those acts expected of those connected with the transaction of the dealer are not for themselves, but on behalf of the dealer. In that sense, when a driver fails to carry the documents required to be carried under Section 44, he exposes himself to the penalty under Section 45, but it is related to the owner of the goods on whom the liability to pay the revenue lies. It is here the distinction emerges between the two types of offences, the revenue and penal ones. On that view, we are of the opinion that the owner of the goods may come up on the scene and offer to compound under Section 46 in spite of the fact that the notice had been served on the driver for laches under Section 44. This is not because the liability of the driver is vicarious, but because of the peculiar position arising out of revenue exigency. We hold, therefore, that the respondent had the locus standi.

4. So far as the appeal in which compounding has been done, we can do nothing for the assessee because compounding is more or less by the consent of the dealer or the driver concerned. In the other case also, we decline to interfere. But at the same time we should observe that, if the owner of the goods came forward to compound the offence, he should be allowed to do so by the department.

5. On that view, the appeals are allowed. No costs.


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