1963 (6) TMI 28 - HC - VAT and Sales Tax

Summary

Issues:
1. Whether the order passed by the Magistrate of Deodurg is revisable under section 438 of the Code of Criminal Procedure.
2. Whether the powers under sections 435, 436, 438, and 439 of the Criminal Procedure Code can be exercised in respect of an order made by a Magistrate under section 13(3)(b) of the Act.
3. The nature of the proceeding and the character of the Magistrate who entertains the application for recovery of tax under the Act.

Analysis:
1. The case involved a criminal revision related to the recovery of sales tax due from a respondent for the year 1959-60. The Magistrate of Deodurg had refused to take proceedings for recovery, prompting the Assistant Commercial Tax Officer to file a revision petition to the District Magistrate. The District Magistrate referred the matter to the High Court under section 438 of the Criminal Procedure Code, contending that the Magistrate should not have refused to recover the tax dues. The key issue was whether the Magistrate's order was revisable under section 438 of the Code of Criminal Procedure.

2. The Court examined whether the powers under sections 435, 436, 438, and 439 of the Criminal Procedure Code could be invoked concerning an order made by a Magistrate under section 13(3)(b) of the Act. It was argued that the Magistrate's role in tax recovery was administrative or executive, not judicial. Previous unreported decisions of the High Court were cited, highlighting the distinction between administrative and judicial orders. The Court emphasized that the Magistrate's function in tax recovery was ministerial and executive, not judicial, and therefore, the provisions of the Criminal Procedure Code could not be applied to interfere with such orders.

3. The Court delved into the nature of the proceeding and the character of the Magistrate involved in tax recovery under the Act. The provisions of the Act provided for a comprehensive process for challenging tax assessments, appeals, and revisions before different authorities. The Court clarified that once the tax amount was determined under the Act, section 13 was invoked for recovery, and the Magistrate's role was limited to executing the recovery process. The Court cited a Supreme Court decision to support the view that a Magistrate in such proceedings was not an inferior Criminal Court under the Criminal Procedure Code, and therefore, revisions to higher authorities were not maintainable.

In conclusion, the Court rejected the reference made by the District Magistrate, deeming it incompetent to revise the order passed by the Deodurg Magistrate in the tax recovery case. The judgment underscored the distinction between administrative and judicial functions in tax recovery proceedings and clarified the limited role of the Magistrate in executing recovery actions under the Act.