1977 (2) TMI 111 - HC - VAT and Sales Tax

Summary

Issues:
1. Whether a notice to show cause was required before issuing a distress warrant by the Magistrate.
2. Whether an assessment order was necessary before proceeding with the attachment and sale of movable property.
3. Validity of the warrant issued without specifying the particular lorry to be attached.
4. Jurisdiction of the Magistrate to impose a fine exceeding a certain amount for recovery through a distress warrant.

Analysis:
1. The first issue raised was whether a notice to show cause was necessary before the Magistrate could issue a distress warrant. The counsel argued that there was no legal requirement for such a notice under the Code of Criminal Procedure or the Sales Tax Act. The petitioners had submitted a return indicating the tax due, and the demand notice was issued accordingly. The court held that in the circumstances presented, the principles of natural justice did not mandate a prior notice to show cause before proceeding with the warrant for attachment and sale of movable property.

2. The next contention was regarding the necessity of an assessment order before attaching and selling movable property. The counsel relied on a previous case but the court distinguished it, emphasizing that in the present case, the petitioners themselves had calculated the tax payable based on their return. As per the provisions of the Sales Tax Act, the tax was due in advance and the demand notice was issued after the petitioners failed to pay. The court concluded that an assessment order was not required as the tax was already due under the Act.

3. The validity of the warrant issued without specifying the particular lorry to be attached was also challenged. The court clarified that under the law, the warrant needed to specify the attachment and sale of any movable property belonging to the assessee. It was deemed sufficient that the warrant provided for the attachment and sale of movable property without specifying a particular item.

4. Lastly, the jurisdiction of the Magistrate to impose a fine exceeding a certain amount for recovery through a distress warrant was questioned. The counsel argued that the Magistrate could not impose a fine exceeding a specified limit. However, the court referred to a previous case and highlighted the legislative changes, noting that the Magistrate could realize the amount as if it were a fine imposed by him, irrespective of the amount exceeding his fine levy limit. The court found no defect in the Magistrate's order and dismissed the petition accordingly.