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P.S. Subramaniam Chettiar Vs. the Joint Commercial Tax Officer Iii - Court Judgment

LegalCrystal Citation
SubjectSales Tax;Constitution
CourtChennai High Court
Decided On
Case Number Writ Petition No. 1114 of 1966
Judge
Reported in[1973]30STC243(Mad)
AppellantP.S. Subramaniam Chettiar
RespondentThe Joint Commercial Tax Officer Iii
Appellant Advocate S. Padmanabhan, Adv.
Respondent Advocate K. Venkataswami, the First Assistant Government Pleader
Cases ReferredHaji Gulam Mohideen Sahib v. Commercial Tax Officer
Excerpt:
.....of the act provides for the invocation of the jurisdiction of the magistrate to collect the arrears of tax as if it were a fine, then the argument that the section in the revenue recovery act do in any way violate article 14 of the constitution of india is not well-founded. as pointed out by the learned government pleader, there is nothing in the main provisions of the taxing act itself to indicate that a defaulting assessee cannot be proceeded against both under section 45 of the madras general sales tax act as well as under section 48 of the revenue recovery act. the thing charged may be within the words of the particular offending section but in order to make it appear that an offence has been committed, it should be well within the spirit of the enactment as well. but in the view..........full bench, this court was of the view that such a revision of assessment under section 16 of the madras general sales tax act is irregular and illegal and allowed the appeal. the judgment of the full bench was rendered on 22nd august, 1966. in the meantime, the respondent issued a notice on 6th april, 1966, calling upon the petitioner to show cause, why action should not be taken against him under section 48 of the madras revenue recovery act, 1864, hereinafter called the revenue recovery act. as soon as the notice, which is now impugned in this writ petition, was issued by the respondent, the petitioner has filed this writ petition and is seeking for a rule of prohibition restraining the respondent from proceeding further under the impugned notice and arresting the petitioner in the.....
Judgment:
ORDER

Ramaprasada Rao, J.

1. The petitioner was the proprietor of a business run under the name and style of 'P. S. Subramaniam Chettiar and Sons' in Mounspuram, Dindigul, Madurai District. For the assessment years 1961-62 and 1962-63, though orders of assessment were made under the Madras General Sales Tax Act originally in 1962 and 1963 respectively, the said orders were revised by the respondent in the purported exercise of his powers under Section 16 of the Act. The revision was effected on 15th December, 1964, and as a consequence of such a revised assessment the petitioner was called upon to pay an additional tax of Rs. 26,698.30 for the first year and Rs. 41,348.21 for the second year as also penalties in the sum of Rs. 787 for 1961-62 and Rs. 164 for the year 1962-63. The petitioner challenged the power of the respondent to revise the assessments under Article 226 of the Constitution of India. He was not successful in the first instance. But on appeal, when the matter was dealt with ultimately by a Full Bench, this court was of the view that such a revision of assessment under Section 16 of the Madras General Sales Tax Act is irregular and illegal and allowed the appeal. The judgment of the Full Bench was rendered on 22nd August, 1966. In the meantime, the respondent issued a notice on 6th April, 1966, calling upon the petitioner to show cause, why action should not be taken against him under Section 48 of the Madras Revenue Recovery Act, 1864, hereinafter called the Revenue Recovery Act. As soon as the notice, which is now impugned in this writ petition, was issued by the respondent, the petitioner has filed this writ petition and is seeking for a rule of prohibition restraining the respondent from proceeding further under the impugned notice and arresting the petitioner in the purported exercise of the statutory power. Whilst this was pending, the Legislature on 24th November, 1966, enacted Act 18 of 1966 and validated such orders of the authorised or statutory authorities under the Act which exercised their power under Section 16 of the Act to revise the concluded assessments under the earlier sales tax legislation. By reason of the provisions of Act 18 of 1966 it is no longer open to the petitioner to challenge the correctness of the revised order of assessment dated 15th December, 1964, made by the authorised officer in the purported exercise of his power to revise the assessment under Section 16 of the Act. The challenge, however, against the impugned notice is made under three heads. The first one is that the Sales Tax Act provides for various modes of recovery of tax and all such modes and in particular the powers exercisable under Section 24 of the Act or under Section 45 thereto are to be exercised by the same officer and when so exercised, the manner and the methodology which an authority is likely to adopt to deal with a given situation, is likely to impinge on Article 14 of the Constitution of India. Whereas under Section 24(2) of the Act the authorities can approach the Magistrate and recover any tax amount due as if it were a fine imposed upon the defaulting assessee, under Section 45 of the Act such a person who, in the opinion of the taxing authority, fraudulently evaded the payment of any tax assessed on him could seek for a punishment of such an assessee by moving the Presidency Magistrate or a Magistrate of the First Class of the area in question to convict the defaulting assessee to a fine which may extend to Rs. 1,000. The conviction which in such circumstances might lead to a sentence of imprisonment can only happen if the default is repeated for a second or subsequent conviction. The further challenge against the order is that under Section 29 of the Act, the Commercial Tax Officers who are vested with certain powers under the Revenue Recovery Act could act without any guidelines in the matter and invoke the provisions of the Revenue Recovery Act so as to ultimately cause the arrest and imprisonment of the defaulter for non-payment of the arrears of tax and for the reason that the revenue has reason to believe that the defaulter is wilfully withholding payment of the arrears or has been guilty of fraudulent conduct in order to evade payment. Sections 29 and 45 of the General Sales Tax Act and Section 48 of the Revenue Recovery Act are juxtaposed and the learned counsel for the petitioner proceeds that the power under the Sales Tax Act might also give the taxing authorities unfettered discretion, either to bring the defaulting assessee before a Magistrate for being dealt with, convicted and sentenced to a fine of Rs. 1,000 for the first offence or in a similar situation proceed against such defaulting assessee under Section 48 of the Revenue Recovery Act and cause his arrest and put him in prison even if the alleged default occurs for the first time. Reliance is placed upon several decisions of the Supreme Court to demonstrate discrimination under Article 14 of the Constitution in the above circumstances.

2. The second contention of the learned counsel for the petitioner is that it is not in dispute in the instant case that some properties of the petitioner were distrained by the revenue for the purpose of recovery of the tax due and such distrained articles have not been so far sold or otherwise dealt with so as to enable them to proceed under Section 48 of the Revenue Recovery Act and cause his arrest to be made. The learned counsel for the department, however, contending contra would state that Section 45 of the Madras General Sales Tax Act is a particular section, dealing with a particular situation and matters, which refers to offences and penalties and this section cannot, therefore, be compared for any purpose with the effect and import of the conjoint application of Section 29 of the Madras General Sales Tax Act read with Section 48 of the Revenue Recovery Act. He would also state that as long as Section 24 of the Act provides for the invocation of the jurisdiction of the Magistrate to collect the arrears of tax as if it were a fine, then the argument that the section in the Revenue Recovery Act do in any way violate Article 14 of the Constitution of India is not well-founded.

3. It is now settled that in tax laws if any distinction and class of persons are created so as to be dealt with separately and singularly for the purposes of levy or collection or penalisation for non-payment of tax or arrears of tax, then such a classification or division, if it be to subserve the object of the legislation and if the differentia made has a nexus to the objects so intended, then such a classification should be considered and deemed to be a reasonable one and not violative of Article 14 of the Constitution. I am afraid that in the instant case no question of discrimination arises at all. Section 24 of the Madras General Sales Tax Act deals with payment and recovery of tax. It provides that if default is made in paying the tax according to the notice of assessment, the whole of the amount outstanding on the date of default shall become immediately due and shall be a charge on the properties of the person or persons liable to pay tax under this Act. Under Sub-section (1) of Section 24, a statutory charge is therefore dented into the property of a defaulting assessee and such charge is annexed to the property of the assessee, either movable or immovable, no sooner the default is reckoned and finalised. The charge can be enforced. In the instant case there is no dispute about default. Therefore, this is one of the accredited methods provided in the statute for recovery of tax. The second but independent mode for recovery of the tax is provided for in Sub-section (2) of Section 24. Sub-section (2) contains two limbs. The first one is any tax assessed on, or any other amount due under this Act from a dealer or person...may without prejudice to any other mode of collection be recovered as if it were an arrear of land revenue. This is the second method by which a collection can be made. The third one is, if the revenue chooses to apply to a Magistrate for the recovery of such arrear of tax or fee, then it is open to the Magistrate to order the said application and direct the recovery of the said amount as if it were a fine imposed by him. This fictional imposition of a fine is intended for the purpose of recovering the amount due. This is provided for in Clause (b) to Sub-section (2) of Section 24. The proviso to this sub-clause indicates the manner in which such an application to the Magistrate can be made. We are not, however, concerned with it. I have only referred to this section and its limbs just to sustain the legislative intent prescribing for more than one method of recovering and collecting the arrears of tax as provided for in Section 24 itself. The fourth method and no doubt a special method by which the Commercial Tax Officers could recover any such amount due under the Act is by invoking the Revenue Recovery Act, 1864. Section 29 of the Madras General Sales Tax Act provides that a Commercial Tax Officer shall have the powers of a Collector under the Madras Revenue Recovery Act, 1864, for the purposes of recovery of any amount due under this Act. This method of recovery is to set in motion by the power referred to in Section 48 of the Revenue Recovery Act. Section 48 of the Revenue Recovery Act provides that when arrears of revenue with interest and other charges cannot be liquidated by the sale of the property of the defaulter, or of his surety, and the Collector shall have reason to believe that the defaulter or his surety is wilfully withholding payment of the arrears, or has been guilty of fraudulent conduct in order to evade payment, it shall be lawful for the Collector (in this case the Commercial Tax Officer by virtue of Section 29 of the Madras General Sales Tax Act) to cause the arrest and imprisonment of the defaulter, etc. This is another method for recovery of tax. But the argument is that this method of recovery of tax or any other amount due under the Madras General Sales Tax Act under Section 29 thereto read with Section 48 of the Act is a stricter mode of collection. The argument is developed thus : whereas, even in the first instance, when default is made, it is open to the revenue to invoke the provisions of the Revenue Recovery Act and cause the arrest of the defaulting assessee to be made, provided he is guilty of fraudulent conduct, Section 45 of the taxing Act dealing with offences and penalties would speak of a fine of Rs. 1,000 only for such first contumacious conduct on the part of the defaulting assessees. In this way there are two independent modes of recovery, one conflicting with the other ; one is stricter and stringent than the other and for the adoption of which there are no guidelines. There is a fallacy in this argument. Section 45 deals with offences and penalties. Section 45(1) sets out the various classes of offences which an assessee can normally and ordinarily be expected to commit. Section 45(2)(a) projects another aspect of the question and the attitude of the assessee in the matter of obedience to tax law in general and in following the prescribed procedure therein, in particular. Sub-clause (b) of Sub-section (2) speaks of a person who fraudulently evades the payment of any tax assessed on him or any fee or other amount due from him under the Act. The word 'fraud' deployed in this sub-clause is used in a totally different concept and situation than the word 'fraud' used in Section 48 of the Revenue Recovery Act. As pointed out by the learned Government Pleader, there is nothing in the main provisions of the taxing Act itself to indicate that a defaulting assessee cannot be proceeded against both under Section 45 of the Madras General Sales Tax Act as well as under Section 48 of the Revenue Recovery Act. If the revenue seeks the process of a criminal court, it has to bring home the offence beyond reasonable doubt and until it is so established, the offence cannot be said to have been proved. On the other hand, Section 48 of the Revenue Recovery Act deals with the subjective satisfaction of the Collector or the Joint Commercial Tax Officer in this case, as regards the contumacious conduct of the defaulting assessee ; no doubt such a conclusion should be based on objective material; but so long as such material is available and the decision is arrived at by the statutory authority that the defaulting assessee is gulity of fraudulent conduct in order to evade payment, and such a decision or conclusion is not perverse or one which a reasonable person cannot come to, then it is not open to interference by higher hierarchy. If it is a reasonable conclusion, if there is basis for the decision and if there is material to act, then, nothing prevents the revenue to take concurrent action under Section 48 of the Revenue Recovery Act, 1864, and proceed against the defaulting assessee and seek for his arrest even in the first instance notwithstanding the fact that the Presidency Magistrate has convicted him for an 'offence' and made him liable to pay a fine of Rs. 1,000 only for the first default. I am of the view that fraud that has to be established in a criminal court involves moral turpitude and proof of moral delinquency, whereas the fraud that is spoken to in Section 48 of the Revenue Recovery Act is fraud as is understood normally and popularly and includes wanton evasion of payment of tax notwithstanding the fact that the defaulting assessee is otherwise in a position to meet the default. In this view of the matter, I am unable to agree with the learned counsel for the petitioner that the procedure under Section 48 of the Revenue Recovery Act is more drastic and is more stringent than that provided for in Section 24 of the Madras General Sales Tax Act. It is only in the contingency where two processes which are to be similarly understood and applied are considered by courts and if one process is more strict than the other and if there is only one authority to act and set in motion one or the other of the processes available, the question of discrimination would arise. But as I am of the view that these two processes are independent, self-active and conjointly invokable too, no question of discrimination would arise.

4. Even otherwise, a criminal offence ordinarily flows from an act committed or omitted to be done in violation of a public law either forbidding or commanding it. The act is integrally connected with the moral turpitude of the person committing the act or omitting to do the act. The thing charged may be within the words of the particular offending section but in order to make it appear that an offence has been committed, it should be well within the spirit of the enactment as well. Juxtaposed to this is a civil offence. This flows from an act or omission undoubtedly involving a breach of public law and may be with a fraudulent purpose, but the difference lies in that no moral turpitude is involved or contemplated and such an act or omission results only in a civil consequence. In the instant case, Section 45 of the Madras General Sales Tax Act refers to the word 'fraud'. It appears under the section 'offences and penalties.' It therefore follows that the act of the person in evading the payment of tax assessed on him should appear to be fraudulent even at its threshold. If action is taken by the appropriate authority to punish a person for such an offence he must prove the same to the hilt and any doubt in such proof would go invariably to the benefit of the accused. In these circumstances, the statutory authority may avail itself of this process so as to bring to book offenders who are guilty of such contumacious conduct for fraudulently evading the payment of tax. I have already stated that this process can be undertaken notwithstanding Section 48 of the Revenue Recovery Act. But it should be said that when the revenue do refer to the provisions of Section 45 of the Madras General Sales Tax Act there are certain guidelines which are to be remembered before the said provision is set in motion. Even so in Section 48 of the Revenue Recovery Act there should be material to satisfy the Commercial Tax Officer that there has been a fraudulent evasion of admitted liability but that by itself would not be enough to cause the arrest of the delinquent. Principles of natural justice have to be borne in mind and the officer concerned has to give a full opportunity to the accused-assessee and thereafter, decide on cogent material; thus, ultimately, he may be prompted by subjective satisfaction, but he has to consider whether the situation is a fit case to cause the arrest of the individual. These are the guidelines for the process under Section 48 of the Revenue Recovery Act. In any event, there is no comparison but only contrast in the matter of the application of these two sections.

5. In the ultimate analysis, various methods of recovery already catalogued are provided in the Madras General Sales Tax Act itself and they are all intended to subserve the interest of public-exchequer in the matter of the speedy realisation of the arrears of tax. If there is any difference superficial ^or otherwise, in the methodology of recovery, such differentia has a nexus to the one salutary object of the Act, namely, speedy recovery of arrears of tax and other dues. In taxing laws a wide discretion is given td the Legislature to create different situations-to be dealt with differently. So long as such procedural processes are intended to achieve the avowed object of the Act, namely, to recover the arrears as early as possible, the flow of the section and its activity cannot be interdicted under a rule issued under Article 226 of the Constitution.

6. State of Orissa v. Dhirendranath Das A.I.R. 1961 S.C. 1715 admittedly deals with two sets of rules, one prescribing a drastic method- which was found to be prejudicial to the petitioner in that case. In those circumstances, the Supreme Court held that there being no guidelines to the authority to invoke such rules, the prescription of two different sets of rules, one drastic and one normal for the same situation-was violative of Article 14 of the Constitution. Similar considerations weighed with the court in laying down the rule in N.I. Caterers Ltd. v. State of Punjab : [1967]3SCR399 . The ratio in both the decisions does not apply to the facts of this case. Considering an allied situation in the Income-tax Act, the Supreme Court in Collector of Malabar v. Ebrahim Hajee : 1957CriLJ1030 observed :

Neither Section 48 of the Act nor Section 46(2) of the Indian Income-tax Act violates articles 14, 19, 21 and 22 of the Constitution. Where an arrest is made under Section 48 after complying with its provisions, the arrest is not for any offence committed or a punishment for defaulting in any payment. The mode of arrest is no more than a mode for recovery of the amount due. There is nothing in the Act which requires the Collector to give the defaulter an opportunity to be heard before arresting him.

7. I respectfully adopt the above ratio even to the facts of this case.

8. One other contention of the learned counsel for the petitioner needs reference. The argument is that it is the same officer who has to invoke both Section 45 of the Madras General Sales Tax Act and Section 48 of the Revenue Recovery Act. As the power is vested in the same official the apprehension is that there is likelihood of misuse. Each case has to be decided on its own merits. In the absence of any mala fides such an assumption need not necessarily flow from a reading of sections and from the entitlement of the officer to invoke one or other of the above sections relating to mode and recovery of tax. But in the view that I hold that he can avail himself of both the provisions against the same delinquent-assessee, no question of discrimination on this ground arises as well.

9. The learned counsel for the revenue raised a question as to the maintainability of this writ petition since the petitioner has come even at the threshold to interdict the process of law. No doubt the petitioner is seeking for a writ of prohibition. A writ of prohibition is not issued as of right or as a matter of course. But it can only issue if the petitioner establishes to the satisfaction of a well instructed mind that a public duty is sought to be neglected or an open action is being undertaken in violation of public law. The circumstances do not warrant the issue of a writ of prohibition in the instant case as the facts do not disclose any such violation of public duty or any excess in the exercise of jurisdiction vested in the statutory authority.

10. But the petitioner, in spite of the conclusions arrived at, is entitled to a writ of prohibition on another ground. In Haji Gulam Mohideen Sahib v. Commercial Tax Officer [1966] 18 S.T.C. 346 a Division Bench of this Court has laid down that in order to invoke the power of arrest under Section 48 of the Madras Revenue Recovery Act, 1864, by virtue of Section 29 of the Madras General Sales Tax Act, 1959, the Commercial Tax Officer should have not only reason to believe that the assessee is wilfully withholding payment of arrears or has been guilty of fraudulent conduct in order to evade payment, but also that the arrears of tax cannot be liquidated by sale of the property of the defaulter. An officer has therefore no jurisdiction to invoke the powers of arrest under Section 48 before satisfying the condition precedent that the arrears of tax demanded from the assessee cannot be liquidated by sale of his properties. Respectfully following the ratio, in this case I am of the view that the petitioner is entitled to succeed. It is not in dispute that some of the movable properties of the petitioner were distrained by the taxing authorities in the purported exercise of their power and for purpose of realising the arrears of tax. But without selling the said properties and without finding out as a fact that the realisation is not sufficient to offset the arrears, further proceedings under Section 48 of the Revenue Recovery Act have been undertaken by the revenue. This is what is prohibited in law and is laid down by the learned Judges in Haji Gulam Mohideen Sahib v. Commercial Tax Officer [1966] 18 S.T.C. 346. On the last consideration which has to be accepted, the rule nisi is made absolute. The revenue is at liberty to take further proceedings in accordance with law after selling the distrained properties and after reckoning the sale proceeds. No costs.


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