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TMI Blog1948 (4) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner filed Criminal Revision Case No. 1215 of 1946 which came before me on 22nd September, 1947. As the petitioner sought to revise the order of rejection of the appeal by the learned Sessions judge, which order was perfectly correct, he had perforce to file Criminal Revision Case No. 1021 of 1947, to revise the order of the Joint Magistrate itself under Sections 435 and 439 of the Criminal Procedure Code. On both these revisions I passed an order on 22nd September, 1947, directing the Sub-Divisional Magistrate of Tuti- corin to record evidence and submit the same to this Court on the various points referred to in that order in extenso which was in the following terms: "The question for decision has narrowed down after hearing the arguments to the simple point as to whether the accused is a person who brings together the seller and the purchaser acting as a broker without having any dominion or right over the goods sold. According to the petitioner all that he does is to bring together the owners of the goods and the intending purchasers and receive a percentage of price of the goods as commission; he does not handle the goods himself, nor can he direct the delivery of possessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese materials, the point for decision is whether the petitioner is a "dealer" as defined in Section 2(b) of the Madras General Sales Tax Act, 1939, his contention being that he is a person who brings together the seller and the purchaser acting as a broker without any dominion or right over the goods sold. The role played by him is only to bring together the vendor and the vendee and receive a percentage of the price of the goods sold as commission for his labours; there is no handling of the goods by him nor does he deliver possession of the same to the purchaser. On the other hand, the contention on behalf of the Crown is that it is the petitioner who effects the sales and thereby carries on the business of selling the goods. The exact position has not been very much clarified even after the examination of the witnesses as a result of the order of this Court. P.W. 1, a dealer in onions and dried chillies deposes that he used to send commodities to Tirunelveli or Tuticorin for sale there in the name of the petitioner accompanied by himself or his men usually. On other occasions the goods were being sent to the petitioner without any- one following it. According to this witness, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld by the petitioner when he was playing the role of a seller. Exhibit P-7 series and Exhibit P-8 together show that a sum of Rs. 9,429 is the turnover regarding those chittas alone. Neither the petitioner's counsel nor the learned Special Public Prosecutor has been able to ascertain exactly the turnover contained in pp. 50 and 88 of Exhibit P-9. Unless it is proved that the dealer has an annual turnover of over Rs. 10,000 there is no obligation cast upon him to submit the return or to pay the sales tax. Such being the case, the burden of proof has become a matter of importance. According to the petitioner's counsel as the proceedings before the lower Court were criminal in nature and governed by the Criminal Procedure Code the complaining authority should affirmatively prove beyond reasonable doubt that the petitioner was a dealer liable to submit a return as he had a net turnover of not less than Rs. 10,000 in the year of taxation; and therefore no duty is cast upon him to show what his turnover is. In effect the argument comes to this; that the assessing authority has to prove affirmatively the net turnover of the assessee. There are provisions in the Act and Rules by which th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al. When such legality or quantum of the assessment is objected to, it is for the prosecution to prove affirmatively that the assessee is lawfully bound to pay the tax. My learned brother did not agree with the contention put forward on behalf of the Crown that the finality reached in the taxation by the revenue authorities under the particular statute is ultimate and that in proceedings in a civil or criminal Court the same cannot be questioned, thereby indicating his view that it is the duty of the prosecution to prove by sufficient evidence to the satisfaction of the Court that the person proceeded against is bound to pay the tax. The earlier cases relating to similar taxation powers under the City Municipal Act, District Municipalities Act and the Local Boards Act, were considered and discussed in extenso in the decision just mentioned and in particular reference has been made to a judgment of Pandrang Row and Venkataramana Rao, JJ., in Rama- swami Aiyangar v. Sivakasi Municipality, (1937) 1 M.L.J. 274. The observations of Venkataramana Rao, J., in that case are pertinent to the circumstances attendant in the present case. At page 276 the learned Judge observes as follows: "O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from Ramaswami Aiyangar v. Sivakasi Municipality, (1937) 1 M.L.J. 274, is that though in such quasi-criminal cases it is incumbent upon the prosecution to prove affirmatively that the offence has been committed, it would be sufficient to shift the onus to the assessee, if Prima facie proof of the liability of such assessee has been furnished by the prosecution. A reference to certain observations in Halsbury's Laws of England, Hailsham Edition (second edition) Vol. XXVIII, page 439, may be useful. The nature of such proceedings discussed therein is instructive in deciding this question. In paragraph 947 occurs the following passage: "Proceedings for the recovery of fines cannot be strictly classified as either civil or criminal; they are in form civil, and the fine is recovered as a debt due to the Crown, but the liability is incurred as the punishment for an offence. The common law rules as to criminal liability are therefore, inapplicable, and a master is liable for fines incurred through the acts of his servants if his knowledge or authority can be inferred, but the measure of his liability is apparently not, as in the case of certain acts prohibited by statute, so absolute a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions which will readily occur to the mind of anyone. The bringing tobacco into this Kingdom is of itself a perfectly innocent act; but the requirements of the public revenue, which induce the Legislature to impose a very high duty upon the article, probably render it matter of necessity that the bringing it into the Kingdom without payment of the duty should be subjected to a penalty. But this cannot affect or alter the intrinsic and essential nature of the act itself and it seems to me that it cannot be denominated a 'crime', according to the ordinary and common usage of language and the understanding of mankind. The proper meaning of 'crime' is an indictable offence. The question has frequently arisen, whether an information at the suit of the Attorney- General for penalties for smuggling is a criminal proceeding. I believe it has invariably been considered not to be so." These observations have been referred to with approval in Attorney- General v. Bradlaugh, (1885) 14 Q.B.D. 667, by the Court of Appeal. Brett, M.R., observes as follows at p. 668: "Now comes the question whether an information by the Attorney- General on the revenue side of the Court of Exchequer is or is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lure to pay the tax, or the evasion of any tax recoverable under the Act. To my mind all these are circumstances which indicate that such proceedings are not entirely criminal. As stated already counsel on either side have not been able to analyse and present before the Court the exact amount received by the petitioner as remuneration for acting as an agent, i.e., bringing together the purchaser and the seller and assisting in the disposal of the goods, without any kind of dominion, right or control over the goods dealt with but only acting as a medium to bring about an agreement between the two parties and earn a commission for selling the goods owned by others without disclosing or letting know that the ownership of the goods was in a third party. The learned Special Public Prose- cutor has rightly conceded that if by "agency" is understood the action for bringing together the two parties and thereby getting some remune- ration for the service rendered, a person who does that will not be a "dealer" as defined in the Act. But where even though the ownership in the articles did not vest in such a person, he purported to have possession of the same and transferred such possession ..... X X X X Extracts X X X X X X X X Extracts X X X X
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