9911796707
TMI Blog1967 (9) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... As in our judgment that provision is void, the same being violative of Article 19(1)(f) of the Constitution, we have not thought it necessary to examine the other contentions raised in the appeal. The facts material for the purpose of deciding the question formulated above, are these: The appellants are dealers registered under the Act carrying on business in art silk, cotton and handloom cloth. During the period January 26, 1950 to March 31, 1950, the appellants effected various sales outside the State of Bombay. As those sales were protected by Article 286(1)(a) of the Constitution, they were outside the reach of the Act. But yet the Sales Tax Officer assessed the turnover relating to those sales. The tax levied in respect of that turnover was Rs. 4,494-3-9. In appeal, the order of the Sales Tax Officer was affirmed by the Assistant Collector of Sales Tax. But the Additional Collector of Sales Tax, in revision, revised the levy to some extent and ordered a refund of Rs. 2,238-0-6. That amount was paid to the assessees. Not being satisfied with the order of the Additional Collector of Sales Tax, the appellants took up the matter in revision to the Sales Tax Appellate Tribunal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants approached the High Court of Gujarat by Special Civil Application No. 641 of 1962 under Article 226 of the Constitution. In that application, they prayed for several reliefs, the most important of which was to direct the respondents to comply with the orders of refund and to refrain from taking any action against them under section 12A(4). The High Court dismissed that application. Hence, this appeal. The Act provides for the levy of tax on the sale of goods in the then State of Bombay. It came into force on March 8, 1946. Any person who carries on business of selling or supplying goods in the State of Bombay whether for commission, remuneration or otherwise, is defined as a "dealer" in section 2(c). Section 8 and section 8A of the Act provide for the registration of dealers. As mentioned earlier the appellants are registered dealers. Under section 2(k) of the Act, the assessment year is the financial year. Section 5 prescribes the incidence of taxation. Section 10 prescribes the returns to be made by the dealers. The assessment is made under section 11. Section 11A provides for taxing the turnover escaping assessment. Section 12 provides for the payment and recovery of tax. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount payable by him under the Act. For the purpose of deciding the point in issue it is not necessary to find out the scope of the expression "collects any amount by way of tax" in section 12A(4). We shall assume, without deciding, the collection made by the appellants, if any, was by way of tax. It was not contended nor could it have been contended that the impugned provision is a taxation measure bringing to tax directly or indirectly the sales effected outside the State of Bombay. In Abdul Quadar and Co. v. Sales Tax Officer, Hyderabad [1964] 6 S.C.R. 867; 15 S.T.C. 403., interpreting section 11(2) of the Hyderabad General Sales Tax Act, 1950, a provision somewhat similar to the impugned provision, this Court observed that legislation under entry 54 of List II of the Constitution (similar to entry 48 of List II of the Government of India Act, 1935, the entry with which we are concerned in this case) proceeds on the basis that the amount concerned is not a tax exigible under the law made under that entry, but even so lays down that though it is not exigible under the law, it shall be paid over to the Government merely because some dealers by mistake or otherwise have collect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nor any rule framed under the Act contemplates any enquiry, much less a reasonable enquiry, in which the person. complained of can plead and prove his case or satisfy the authorities that their assumptions are either wholly or partly wrong. The Act is silent as to the machinery and procedure to be followed in determining the question as to whether there has been a contravention of section 12A(1) and (2), and if so, to what extent. Hence it would be open to the department to evolve all the requisite machinery and procedure which means that the whole thing, from the beginning to end, is treated as of a purely administrative character, completely ignoring the legal position. The imposition of a penalty on a person is at least of a quasi- judicial character. The impugned provision does not concern itself only with the amount admittedly collected by a person in contravention of sub-sections (1) and (2) of section 12A. Even if there is any dispute either as to the factum of collection or as to the amount collected, such a case also comes within the scope of section 12A(4). Yet that section does not provide for any enquiry on disputed questions of fact or law. The forfeiture provided ..... 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