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TMI Blog1967 (1) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... the meaning of the Madras General Sales Tax Act and the petitioner is not a dealer as defined under that Act. Nevertheless on 11th May, 1964, the respondent, the Deputy Commercial Tax Officer, Thyagarayanagar, issued a notice to the petitioner as below: "Messrs. Rajasthan Investment Corporation are doing the business of hire-purchase of automobiles. During the year 1958-59 they have had transactions to the extent of Rs. 24,224. As the assessees are the first dealers in this State, they are liable to pay tax at 6 per cent. on the above transactions. The tax amounts to Rs. 1,453.44." "The dealers should have filed a return in Form A-1 showing their turnover for the year 1958-59 on or before Ist May, 1959. They failed to do so and thereby ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vention as failing under section 46(1)(a) for which the composition fee is fixed at a sum not exceeding Rs. 1,000 or double the amount of the tax recoverable, whichever is greater, is also a ground vitiating the notice. Learned counsel for the petitioner at the time of the hearing of the writ petition referred to a decision of a Full Bench of this Court in Public Prosecutor v. V.M. Ramalingam Pillail. That decision dealt with the scope of section 16-A of the Madras General Sales Tax Act of 1939, which is analogous to section 48(2) of the Madras General Sales Tax Act, 1959, which states: "The validity of the assessment of any tax, or of the levy of any fee or other amount, made under this Act, or the liability of any person to pay any ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a the learned Government Pleader submits that the decision in Public Prosecutor v. V.M. Ramalingam Pillai[1958] 9 S.T.C. 510.as well as the principles laid down in section 48(2) of the Madras General Sales Tax Act, 1959 (section 16-A of the Madras General Sales Tax Act, 1939) relate to completed assessments and can have no application to cases like the present one where there has been no completed assessment and where, further, no assessment may not at all be possible to be made in view of the lapse of time. No doubt the Full Bench has referred at page 527 to the difficulties, which the Magistrate might be faced with, if he is asked to consider about the propriety of an assessment at a trial where he is bound to follow the rules of the Evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istrate can go into the question whether the alleged encroachment was true and therefore justified the imposition of the penalty." In a decision given by me in Public Prosecutor v. Ramachandra Chettiar[1966] 18 S.T.C. 412; (1966) 2 M.L.J. 446. , it was held that the provision of a time-limit of five years for assessing escaped turnover, cannot be relied upon as an automatic bar for a prosecution under section 45(2) of the Act for an offence of wilful submission of a false return in respect of a period prior to five years. Even in such circumstances a prosecution can be maintained but it will be for the prosecution to adduce data from which the criminal court could come to the inference that the return submitted by the dealer was false or in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x Act, of the tax which the petitioner might be liable to pay treating the alleged hire-purchase transactions as sales. In other words, the composition fee is fixed with reference to section 46(1)(a) of the Act. It is obvious that section 46(1)(a) of the Act refers to cases of completed assessment where the assessee has either failed to pay the tax levied or has done something which amounts to evasion of the payment of the tax, which is recoverable under the Act. That this should be the meaning of section 46(1)(a) will also be clear from the provision in that section, that the composition will be in addition to the tax recoverable. But in the present case there is no question of an assessment having been completed and, therefore, there is n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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