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TMI Blog1953 (6) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioners are taxed illegally on the turnover basis of sales as if they were dealers in general commodities; whereas being dealers in cocoanuts, they should have been classed under the category of fruit merchants and dealt with on basis specially appli- cable to fruit merchants and taxed according to the rates fixed in the Government Notification issued in that behalf. In support of his con- tention Mr. Krishnappa relied upon the case of this Court reported in Kariappa v. Government of Mysore(1), Venkatachala Chetty v. Govern- ment of Mysore(2) and Subban Beigh v. Government of Mysore(3). The first of these cases relates to the question whether a merchant selling fried gram could be brought under the purview of the Sales Tax Act; the next ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come-tax Act. The learned Judge has discussed this point at length, quoting with approval a passage from the commentary under Section 67 of the Income- tax Act by Mr. A.C. Sampath Iyengar (3rd Edition) embodying the then prevailing judicial opinion that an assessment based on some provision of (1) [1953] 4 S.T.C. 94; A.I.R. 1953 Mys. 12. (3) [1953] 4 S.T.C. 108; A.I.R. 1953 Mys.19. (2) [1953] 4 S.T.C. 105; A.I.R. 1953 Mys. 18. the Act which was being impugned as ultra vires was not within the bar of the section since no assessment which was ultra vires or in excess of jurisdiction, could be said to be one "made under the Act" and thus an assessment made by an Income-tax Officer contrary to the rules made under the Act, or without holding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act' is an assessment finding its origin in the activity of the assessing officer acting as such. The circumstance that the assessing officer has taken into account an ultra vires provision of the Act is in this view immaterial in determining whether the assessment is 'made under the Act'. The phrase describes the provenance of the assessment; it does not relate to its accuracy in point of law. The use of the machinery provided by the Act, not the result of that use, is the test." In 52 Mys. H.C.R. 455 Venkataramana Rao, C.J., while citing the above Privy Council decision in connection with the consideration of the limits of jurisdiction of the Controller under the Mysore House Rent Control Act, observes thus: "His Lordship does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave no jurisdiction to enter into an elaborate enquiry or question the validity of the assessment which must be done only through the appropriate machinery created by the Sales Tax Act itself. The principle laid down in these decisions conforms itself to the principle laid down by the Privy Council decision discussed above, and I find no reason to change that view. Section 22 of the Mysore Sales Tax Act is thus an express bar against calling the assessment into question in any Court. It runs thus: "Save as provided in Section 16, no assessment made and no order passed under this Act or the rules made thereunder by any assessing authority shall be called into question in any Court and save as is pro- vided in Sections 14 and 15 no appeal o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vance merely is that the assessees are taxed under a provision resulting in a heavier burden than what ought to have been laid, under the proper provision applicable to the commodity which the petitioners are dealing in, and in the light of the foregoing discussion, such an objection against the enforceability of tax assessment cannot be raised, before a criminal Court. Mr. Krishnappa next contended that, on the application of some of the cocoanut merchants, the Notification relating to the concessional rate of tax in regard to the sellers of fruits, was modified by Government by the addition of an explanation as a result of which cocoanuts are removed from the category of fruits. The learned counsel argued that this subse- quent amendmen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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