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The Public Prosecutor Vs. K. Jacob Nadar - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtChennai High Court
Decided On
Case NumberCr. Appeal No. 181 of 1950
Judge
Reported inAIR1951Mad886; (1951)1MLJ511
ActsMadras General Sales Tax Act, 1939 - Sections 2, 9 and 15
AppellantThe Public Prosecutor
RespondentK. Jacob Nadar
Appellant AdvocateState Prosecutor
Respondent AdvocateK. Kalyanasundaram, Adv.
DispositionAppeal dismissed
Cases ReferredPalani Ammal v. Sethurama Aiyangar
Excerpt:
- - 2 (a) if the assessing authority is satisfied that any return submitted under sub-section (1) is correct & complete, he shall assess the dealer on the basis thereof. (b) if no return is submitted by the dealer under sub-section (1) before the date prescribed or specified in that behalf or if the return submitted by him appears to the assessing authority to be incorrect or incomplete the assessing authority shall assess the dealer to the best of his judgment. shall specify in the order the tax, fee or other amount which the person convicted has failed or evaded to pay or has wrongfully collected & the tax, fee or amount so specified shall be recoverable as if it were a fine......judgment of chandrasekhara aiyar j. in 'palani ammal v. sethurama aiyangar', 1949 mwn 139. in that case the notice was served on the firm represented by one of the patnrs. & both the patnrs. of the firm were accused. as both the patnrs. were made accused, the learned judge presumably treated the firm as accused & convicted both the patnrs. who constituted the firm. in this case i cannot treat the firm as the accused as one of the accused only was prosecuted in his personal capacity. 6. i agree with the ct. below & hold that theorder of acquittal is correct. the appeal is therefore dismissed.
Judgment:

Subba Rao, J.

1. The accused was charged under two counts for having contravened Section 15 (a) & (b). Madras General Sales Tax Act. He was convicted for the offence of contravening the provisions of Section 15 (a) but acquitted of the charge of contravening the provisions of Section 15 (b). The Public Prosecutor has preferred the appeal against the order of acquittal.

2. The facts are not in dispute & they may be stated briefly. Jacob Nadar & Mylappan were patnrs. of the firm Mylappan & Co. Jacob ceased to be a patnr. of the firm in December 1947. The firm was liable to pay sales tax to the extent of Rs. 3953-8-0 for the year 1946-47. Notice demanding the payment of the arrears of tax from the firm was served upon Mylappan on 31-3-1948. As the amount was not paid in time the Asst. Commercial Tax Officer filed a complaint against Jacob Nadar, the other patnr. The question is whether Jacob Nadar, on whom no notice was served is guilty of the offence.

3. The relevant provisions of the Madras General Sales Tax Act read as follows :

'2 (b) 'dealer' means any person who carries on the business of buying or selling goods;

Expln.: A co-operative society, a club, a firm or any assocn. which sells goods to its members is a dealer within the meaning of this clause.

9 (1). Every dealer whose turnover is ten thousand rupees or more in a year shall submit such return or returns relating to the turnover, in such manner, & within such periods as may be prescribed.

2 (a) If the assessing authority is satisfied that any return submitted under Sub-section (1) is correct & complete, he shall assess the dealer on the basis thereof.

(b) If no return is submitted by the dealer under Sub-section (1) before the date prescribed or specified in that behalf or if the return submitted by him appears to the assessing authority to be incorrect or incomplete the assessing authority shall assess the dealer to the best of his judgment.

15. Any person who ........................ (b)

fails to pay within the time allowed any tax assessed on him, or any fee due from him, under this Act, shall on conviction by a Presidency Mag. or a Mag. of the First Class be liable to a fine which may extend to one thousand rupees & in the case of a conviction under Clauses (b), (d), (f) or (g), the Mag. shall specify in the order the tax, fee or other amount which the person convicted has failed or evaded to pay or has wrongfully collected & the tax, fee or amount so specified shall be recoverable as if it were a fine.'

4. A combined reading of the aforesaid sections establishes that a firm is a person & that for the purpose of assessment the firm is treated as one entity & that in default of payment pursuant to the notice the firm is liable to be prosecuted. It is true that under Rule 19 of the Madras General Sales Tax rules if a dealer or licensee enters into a partnership with regard to his business he shall report the fact to the assessing authority within 30 days of his entering into such partnership & that the dealer or licensee & the patnr. shall jointly & severally be responsible for the payment of the tax leviable under the Act. But that rule does not override the provisions of the Act which enable the authorities concerned to deal with the firm as one entity for the purpose of assessment & prosecution. In the instant case the assessment was made on the firm. The notice was issued to the firm. But a patnr. of the firm was prosecuted. As the defaulter in this (case) is the firm, the firm should have been prosecuted for contravening the provisions of Section 15. But instead, one of the patnrs. on whom no notice was served at all has been prosecuted in his personal capacity. The firm which is a person Under Section 2 (b) & who committed the offence, is not the accused in the case. Though Jacob may be made liable if the proper procedure had been followed as a patnr. of the firm--on that question I do not express my final opinion--he is not liable as the firm is the person who made the default & who should have been prosecuted.

5. The learned State Prosecutor reld. upon the judgment of Chandrasekhara Aiyar J. in 'Palani Ammal v. Sethurama Aiyangar', 1949 MWN 139. In that case the notice was served on the firm represented by one of the patnrs. & both the patnrs. of the firm were accused. As both the patnrs. were made accused, the learned Judge presumably treated the firm as accused & convicted both the patnrs. who constituted the firm. In this case I cannot treat the firm as the accused as one of the accused only was prosecuted in his personal capacity.

6. I agree with the Ct. below & hold that theorder of acquittal is correct. The appeal is therefore dismissed.


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