1975 (9) TMI 164 - HC - VAT and Sales Tax

Issues Involved:
1. Jurisdiction of Executive Magistrate under Section 23(2)(b) of the Kerala General Sales Tax Act, 1963.
2. Interpretation of "Magistrate" in Section 23(2)(b) in light of Section 3(4) of the Criminal Procedure Code, 1973.
3. Pecuniary jurisdiction of Magistrates in recovery proceedings.

Detailed Analysis:

1. Jurisdiction of Executive Magistrate under Section 23(2)(b) of the Kerala General Sales Tax Act, 1963:

The primary issue raised was whether an Executive Magistrate has the jurisdiction to proceed with the recovery of tax under Section 23(2)(b) of the Kerala General Sales Tax Act, 1963. The petitioners argued that Executive Magistrates lack this jurisdiction as they do not have the power to impose fines, a power reserved for Judicial Magistrates under the new Criminal Procedure Code. The court referred to Section 23(2)(b), which states that any tax assessed may be recovered "on application to any Magistrate, by such Magistrate, as if it were a fine imposed by him."

The petitioners contended that the term "Magistrate" should be interpreted as "Judicial Magistrate" based on Section 3(4) of the Criminal Procedure Code, 1973, which differentiates between judicial and administrative functions. The court, however, rejected this argument, stating that the function of recovering tax is more ministerial or executive in nature rather than judicial, as it does not involve the appreciation or sifting of evidence.

2. Interpretation of "Magistrate" in Section 23(2)(b) in light of Section 3(4) of the Criminal Procedure Code, 1973:

The court examined Section 3(4) of the Criminal Procedure Code, 1973, which delineates the functions exercisable by Judicial and Executive Magistrates. It was argued that functions involving the appreciation of evidence or formulation of decisions exposing individuals to punishment should be exercised by Judicial Magistrates. However, the court concluded that the recovery of tax does not fall into this category. The court emphasized that the recovery process under Section 23(2)(b) is ministerial and does not require the Magistrate to exercise judicial functions.

The court referenced the Supreme Court decision in Dargah Committee, Ajmer v. State of Rajasthan, which held that recovery proceedings before a Magistrate are ministerial rather than judicial. The Magistrate acts as a persona designate and not as a court under the Criminal Procedure Code. The court also cited the Mysore High Court decision in State v. Udyawar, which supported the view that the Magistrate's role in tax recovery is designated by the Sales Tax Act and not the Criminal Procedure Code.

3. Pecuniary jurisdiction of Magistrates in recovery proceedings:

The petitioners argued that even if an Executive Magistrate could recover tax, they could not recover amounts exceeding their pecuniary jurisdiction for imposing fines. The court dismissed this contention by referencing the Madras High Court decision in Habibunnissa v. State of Madras, which held that the pecuniary limits prescribed by the Criminal Procedure Code do not apply when a Magistrate acts under the Sales Tax Act. The court observed that the phrase "as if it were a fine" in Section 23(2)(b) is not a deeming provision but a procedural directive for recovery, not limiting the amount recoverable.

The court concluded that the jurisdiction to recover tax is conferred by the Sales Tax Act itself, and the Magistrate's role in this context is ministerial. Therefore, any Magistrate, including an Executive Magistrate, can entertain applications for tax recovery without being constrained by the pecuniary limits applicable to fines under the Criminal Procedure Code.

Conclusion:

The court dismissed the petitions, affirming that Executive Magistrates have the jurisdiction to recover tax under Section 23(2)(b) of the Kerala General Sales Tax Act, 1963. The function of recovering tax is ministerial and does not require judicial functions, thus falling within the purview of Executive Magistrates as well. The pecuniary limits for fines under the Criminal Procedure Code do not restrict the amounts recoverable by Magistrates under the Sales Tax Act.

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