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Balkishen Goenka Vs. Special Assistant Commercial Tax Officer for Sales Tax Collection - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtChennai High Court
Decided On
Case NumberWrit Petition No. 1457 of 1966
Judge
Reported in[1971]28STC572(Mad)
AppellantBalkishen Goenka
RespondentSpecial Assistant Commercial Tax Officer for Sales Tax Collection
Appellant AdvocateP.V. Subramaniam, Adv.
Respondent AdvocateK. Venkataswami, First Assistant Government Pleader and ;P. Venkataraman, Adv.
DispositionPetition dismissed
Cases ReferredKannamba v. Boad of Revenue
Excerpt:
.....the properties as well. as the petitioner has come to court soon after the issue of the challenged notice, and that, in the year 1966, and as he filed this writ petition well within a period of six months from the date of the issue, it appears to me that he is entitled to file the suit without the revenue taking up the plea of limitation under the latter part of section 59. it is expected that the revenue would not raise any such plea, having regard to the special facts and circumstances in the instant case and to the pendency of the writ petition for a considerable number of years in this court......24th november, 1961. mr. ranganathan chettiar was a dealer liable to pay sales tax under the tamil nadu general sales tax act. for the years commencing from 1954-55 and ending with 1956-57, the tax liability on mr. chettiar rose to the tune of rs. 5,681.06. it is claimed that notices of demand were issued as against the defaulting assessee as and when the tax was reckoned for each of the assessment years. apparently, the dealer, mr. chettiar, without disclosing that such was his liability under the tamil nadu general sales tax act, disposed of the above properties for consideration in favour of the petitioner. soon thereafter, the revenue, taking advantage of section 24 of the tamil nadu general sales tax act, gave a notice of demand on the petitioner and sought to distrain his.....
Judgment:
ORDER

Ramaprasada Rao, J.

1. The petitioner purchased lands bearing survey numbers given in paragraph 2 of his affidavit, situate in Payyankidigadi village, Orathnad Taluk, Thanjavur District. He purchased them from one S.K.R.M. Ranga-nathan Chettiar under a registered deed of sale dated 24th November, 1961. Mr. Ranganathan Chettiar was a dealer liable to pay sales tax under the Tamil Nadu General Sales Tax Act. For the years commencing from 1954-55 and ending with 1956-57, the tax liability on Mr. Chettiar rose to the tune of Rs. 5,681.06. It is claimed that notices of demand were issued as against the defaulting assessee as and when the tax was reckoned for each of the assessment years. Apparently, the dealer, Mr. Chettiar, without disclosing that such was his liability under the Tamil Nadu General Sales Tax Act, disposed of the above properties for consideration in favour of the petitioner. Soon thereafter, the revenue, taking advantage of Section 24 of the Tamil Nadu General Sales Tax Act, gave a notice of demand on the petitioner and sought to distrain his properties mentioned above. On receipt of the said notice, the petitioner has come up to this Court for the issue of a writ of certiorari to quash the intended proceedings of the respondent in the purported exercise of its power under the Sales Tax Act read with the Madras Revenue Recovery Act, 1864.

2. The petitioner's case is that he is a bona fide purchaser for value without notice of such arrears of tax and that even if the statutory charge was created and is annexed to the properties which were sold to him, he would not be liable, in any event, to pay such arrears, as he cannot be deemed to be a 'defaulter' within the meaning of the term either under the Tamil Nadu General Sales Tax Act or under the Madras Revenue Recovery Act. Reliance is placed on the decision of this Court in Kannamba v. Boad of Revenue [1967] 19 S.T.C. 456. Learned counsel for the petitioner would further submit that even though the petitioner is a 'person aggrieved' in respect of the impugned notice, yet, it is for the State to take such independent proceedings to get relief either under the general law of the land or under the special enactments, as above, but that the petitioner cannot be compelled to suffer the tax liability of his vendor when he is not in default.

3. The revenue, contending contrary, would say that the notice was issued by the authority in the exercise of its statutory power under the provisions of Section 24 of the Tamil Nadu General Sales Tax Act read with Section 58 of the Revenue Recovery Act, and that, in this view of the matter, there being no error apparent, or want of jurisdiction on the part of the statutory authority, no writ of certiorari should issue. The further contention, but in the alternative, is that the petitioner should be deemed to be an 'aggrieved person' because of the service of the challenged notice and that in those circumstances he has to be referred to an independent suit for getting appropriate reliefs and incidentally interdict the process already set in motion by the revenue.

4. The word 'defaulter' has not been defined in the Madras Revenue Recovery Act. But the provisions thereof are, by a fiction, deemed to apply in situations where an assessee under the Tamil Nadu General Sales Tax Act is in default. Section 24 of the Tamil Nadu General Sales Tax Act deals with payment and recovery of tax. If default is made in paying according to the orders of assessment, the amount so reckoned shall become immediately due and shall be charged on the properties of the person or persons liable to pay the tax under the Act. Sub-section (2)(a) of Section 24 provides that such arrears of tax may, without prejudice to any other mode of collection, be recovered as if it were an arrear of land revenue. It is this fiction of treating the 'arrear of sales tax' as if it were an 'arrear of land revenue' which attracts Section 52 of the Madras Revenue Recovery Act, 1864. This section provides that all arrears of revenue, other than land revenue, due to the State Government, may be recovered in the same manner as arrears of land revenue under the provisions of the Act, unless there is a contrary intendment provided for in any other special enactment. Section 57 of the Revenue Recovery Act provides for the procedure for recovery of such arrears from a defaulter. We are not strictly concerned with the procedure in the instant case, as the argument is that the revenue cannot issue a notice to sell the properties of the petitioner on the fact that he is a defaulter within the meaning of Section 57 of the Act. It is not seriously disputed before me that the vendor who conveyed the properties to the petitioner was a dealer and was assessed to sales tax for the years in question and the amount due was claimed from him. But what is sought to be made out is that as the petitioner is not a 'defaulter' in the popular sense, or in the sense of a defaulter within the meaning of the Tamil Nadu General Sales Tax Act the proceedings sought to be initiated under the challenged notice are ab initio illegal. I am unable to agree.

5. Section 24 of the Tamil Nadu General Sales Tax Act, 1959, makes it clear that a charge is created over the property of a dealer for all the arrears of sales tax or dues payable under the said Act by such a dealer. As, by the creation of a statutory charge, the property is burdened until it is relieved of the same by a process known to law, the petitioner cannot escape by merely stating that he is not factually a 'dealer' as is popularly understood and his property cannot in any manner be proceeded against notwithstanding the fact that the property is charged statutorily for the payment of the arrears of sales tax due by the person who conveyed the property to the petitioner. Section 59 of the Revenue Recovery Act reads thus:

Nothing contained in this Act shall be held to prevent parties deeming themselves aggrieved by any proceedings under this Act, except as hereinbefore provided, from applying to the Civil Courts for redress; provided that Civil Courts shall not take cognizance of any suit instituted by such parties for any such cause of action, unless such suit shall be instituted within six months from the time at which the cause of action arose.

6. This provides for a safeguard against the misuse of power by the statutory authority who, either directly or by the deeming fiction, is allowed to proceed under the Revenue Recovery Act and distrain property, both movable and immovable, and ultimately sell it for realizing the dues or arrears of tax payable to the State.

7. Here is a case in which the statutory authority in the exercise of such power, has distrained the properties, admittedly belonging to the petitioner and intends to proceed further under the Revenue Recovery Act which ultimately might result in the sale of the properties as well. In this view, it cannot be disputed that the petitioner is a 'person aggrieved' by the proceedings set afoot by the statutory authority. The challenged notice is one such proceeding. The petitioner is aggrieved thereunder. Nothing prevents him from instituting a suit for getting appropriate relief or reliefs. But Mr. Subramaniam, learned Counsel for the petitioner, says that it is for the State to file a suit in a civil court and pursue the statutory charge. This, would mean that his request is to ask the State to file a suit not to obtain redress but to further its rights. That is not the intention of the section. The section provides for giving redress to persons aggrieved by proceedings under the Act. The petitioner is undoubtedly aggrieved as he has come up to this Court challenging the one taken and seeking for a rule under Article 226 of the Constitution. It is he who should file a suit to get redress or the appropriate relief. What the relief he can obtain, it is not for this Court to surmise or to predicate.

8. The apprehension of the petitioner is that the revenue is likely to set up the plea of limitation which is contained in the latter part of Section 59 of the Revenue Recovery Act. As the petitioner has come to court soon after the issue of the challenged notice, and that, in the year 1966, and as he filed this writ petition well within a period of six months from the date of the issue, it appears to me that he is entitled to file the suit without the revenue taking up the plea of limitation under the latter part of Section 59. It is expected that the revenue would not raise any such plea, having regard to the special facts and circumstances in the instant case and to the pendency of the writ petition for a considerable number of years in this Court.

9. The petitioner is granted six months' time to file the suit; and, in the meantime, the revenue would not pursue the proceedings under the Revenue Recovery Act with reference to the challenged notice.

10. With these observations, and as the notice, as such, is not susceptible to challenge under Article 226 of the Constitution of India, the rule nisi is discharged. There will be no order as to costs.


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