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TMI Blog1966 (7) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... 650.41 respectively. Though demand notices were served on the assessee on 9th May, 1964, he did not pay the taxes. It was also found that on 22nd November, 1963, he had executed a sale of his properties to his son, waiving price on account of affection. The revenue launched two prosecutions against him-one for each year of assessment-under sections 46(1)(f) and 46(2)(c) of the Kerala General Sales Tax Act, 1963 (hereafter "the new Act"); and the Sub-Divisional Magistrate, Kunnamkulam, convicted him under both provisions, finding the sale to his son to have been made in order to evade payment of the taxes and fined him Rs. 450 and Rs. 1,000 with one month's simple imprisonment in default in each case under section 46(1)(f) and sentenced him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he old Act may be recovered as if they accrued under the new Act. Liability to tax has been incurred by the petitioner when he carried out taxable transactions, though its payability is deferred till after the tax is quantified in formal assessment and demand made for the assessed amount. The sales which gave rise to the taxes concerned in these cases were had in the years 1960-61 and 1961-62. So, by 31st March, 1962, amounts became due by the petitioner under the old Act, which, by virtue of section 61 of the new Act, became recoverable as if they accrued under the new Act. When the same was assessed and demanded, he was bound to pay. By his omission to pay within the time allowed, he committed an offence under the sales tax law. The form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, 1949 ... shall not affect the previous operation thereof, and subject thereto, anything done or any action taken in the exercise of any power conferred by or under that Ordinance shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act as if this Act were in force on the day on which such thing was done or action was taken." The Supreme Court held: "In the present case sub-section (3) of section 58 of Central Act 31 of 1950 purports to indicate the effect of that repeal, both in negative and in positive terms. The negative portion of it relating to 'the previous operation' of the prior Ordinance appears to have been taken from section 6(b), General Clauses Act, while the positive portio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly be after the tax has become payable. As stated in the preceding paragraph, the petitioner has "incurred" liability for taxes in question on 1st April, 1962. The sale executed by him in favour of his son was after that date. In fact it was even after the Intelligence Officer seized his secret books when he knew for certain that his concealment of his real turnovers would not avail him any further to escape payment. Under section 53 of the Transfer of Property Act, a transfer made with intent to defeat subsequent creditors may be fraud on creditors, and avoided as such. On analogy, a transfer of property designed to defeat revenue is a fraud on revenue and that coupled with non-payment of tax within the time allowed by law amounts to a fra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a specific provision relating to punishment for fraudulent evasion of payment of tax, which is therefore taken out of the ambit of clause (1)(f). Further, a wilful non-payment of tax is necessarily implicit in a fraudulent evasion of payment of tax; and therefore when punishment is imposed for the latter offence it covers the former as well and there cannot be a further punishment imposed for the former. The courts below have found the petitioner guilty of fraudulent evasion of tax. If that stands-I have found that that must stand in the circumstances of this case-the conviction made for wilful non-payment of the same tax under Clause (1)(f) has to be discharged. 5.. In the result, I discharge the conviction of the petitioner and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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