9911796707
TMI Blog1955 (3) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... another Division Bench of the Madras High Court consisting of Rajamannar, C.J., and Venkatarama Ayyar, J., held that section 16A was neither opposed to natural justice nor ultra vires of the Constitution and in Gigina Basha Sahib, In re(3), Panchapakesa Ayyar, J., said: "I have not been shown any valid reason, much less a ruling of any High Court, holding section 16A to be ultra vires. I hold that it is not ultra vires." The only passage in Guruviah Naidu and Co., In re(1), discussing Syed Mohamed & Co. v. State of Madras(2), reads as follows: "In Syed Mohamed & Co. v. State of Madras(2), relied on by the learned Advocate-General, a Bench of this Court has held that section 16A of the General Sales Tax Act is valid and it cannot be said to be opposed to natural justice or repugnant to the Constitution, in view of the elaborate procedure that has been made available to the assessee to question the validity of the order at a stage prior to the attempt by the State for the realisation of the same. In that decision, the matter arose in a writ and the whole Act was contended to be ultra vires and it was held that the plea that the Act was ultra vires could not be raised before the Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I of the Seventh Schedule to the Government of India Act, 1935, except matters relating to taxation". 3.. Article 1 of the Instrument of Accession reads: "I hereby declare that I accede to the Dominion of India with the intent that the Governor-General of India, the Dominion Legislature, the Federal Court and any other Dominion authority established for the purposes of the Dominion shall, by virtue of this Instrument of Accession but subject always to the terms thereof, and for the pur- poses only of the Dominion, exercise in relation to the United State such functions as may be vested in them by or under the Government of India Act, 1935, as for the time being in force in the Dominion of India" and Article 3: "I accept all matters enumerated in List I and List III of the Seventh Schedule to the Act as matters in respect of which the Dominion Legislature may make laws for the United State: Provided that nothing contained in the said Lists or in any other provision of the Act shall be deemed to empower the Dominion Legis- lature to impose any tax or duty in the territories of the United State or to prohibit the imposition of any duty or tax by the Legislature of the United State in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndian Evidence Act should be considered as a self-contained Code and in view of section 105 of that Act section 21 of the Travancore-Cochin General Sales Tax Act, 1125, should also be treated as ultra vires of the provisions of Article 21 of the Constitution to the effect that "no person shall be deprived of his life or personal liberty except according to procedure established by law"., There is no merit in this contention. All that section 105 provides is: "When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the court shall presume the absence of such circumstances." After studying the judgment carefully and hearing counsel at length we have also come to the conclusion that it is not possible for us to accept the reasoning or the decision embodied in Guruviah Naidu Co., In re(1). 7.. Section 12 of the Travancore-Cochin General Sales Tax Act, 1125, lays down the procedure to be followed by the assessing autho- rity and sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act in contraven- tion of the provisions of section 11, sub-section (1), or (g) fails to pay the amounts specified in section 11, sub-section (2), within the prescribed time, or (h) wilfully acts in contravention of any of the provisions of this Act shall, on conviction by a Magistrate of the First Class, be liable to a fine which may extend to one thousand rupees and in the case of a conviction under clause (b), (d), (f), or (g), the Magistrate shall specify in the order the tax, fee or other amount, which the person convicted has failed or evaded to pay or has wrongfully collected, and the tax, fee or amount so specified shall be recoverable as if it were a fine under the Code of Criminal Procedure for the time being in force." 9.. The offence with which we are concerned in this case comes under (b) and consists of the failure of the accused to pay within the time allowed the tax assessed on him under the Act. The most im- portant thing to note is that the offence is not related to the liability to pay the tax but only to its non-payment within the time allowed. In other words, the liability is assumed having been fixed and finalised under the provisions of the Act and the tria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t controversy should arise whether one or other legis- lature is not exceeding its own, and encroaching on the other's consti- tutional legislative power" (1) [1954] 5 S.T.C. 129; A.I.R. 1954 Mad. 833. (2) [1945] 1 S.T.C. 135; A.I.R. 1945 P.C. 98. and in such a controversy the principle to be applied is that it is the real nature, "the pith and substance", of the legislation "which must determine into what category it falls". The argument, however, forgets that the pith and substance rule has nothing to do with the questions which arise under section 107(1) of the Government of India Act, 1935, or under Article 254 of the Constitution. That it has nothing to do with section 107(1) has been clearly laid down by the Federal Court in Megh Raj and Others v. Allah Rakhia and Others(1), wherein it is said that such questions do not arise "when objection is taken not under section 100, Constitution Act, but under section 107(1)". It is, how- ever, unnecessary to pursue this matter further as on the merits we are clearly of opinion that there is no repugnancy between section 21 of the Travancore-Cochin General Sales Tax Act, 1125, or any of the provisions of the Code of Criminal Procedure, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
