9911796707
TMI Blog1971 (7) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... y by a Full Bench, this court was of the view that such a revision of assessment under section 16 of the Madras General Sales Tax Act is irregular and illegal and allowed the appeal. The judgment of the Full Bench was rendered on 22nd August, 1966. In the meantime, the respondent issued a notice on 6th April, 1966, calling upon the petitioner to show cause, why action should not be taken against him under section 48 of the Madras Revenue Recovery Act, 1864, hereinafter called the Revenue Recovery Act. As soon as the notice, which is now impugned in this writ petition, was issued by the respondent, the petitioner has filed this writ petition and is seeking for a rule of prohibition restraining the respondent from proceeding further under the impugned notice and arresting the petitioner in the purported exercise of the statutory power. Whilst this was pending, the Legislature on 24th November, 1966, enacted Act 18 of 1966 and validated such orders of the authorised or statutory authorities under the Act which exercised their power under section 16 of the Act to revise the concluded assessments under the earlier sales tax legislation. By reason of the provisions of Act 18 of 1966 it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to a fine of Rs. 1,000 for the first offence or in a similar situation proceed against such defaulting assessee under section 48 of the Revenue Recovery Act and cause his arrest and put him in prison even if the alleged default occurs for the first time. Reliance is placed upon several decisions of the Supreme Court to demonstrate discrimination under article 14 of the Constitution in the above circumstances. The second contention of the learned counsel for the petitioner is that it is not in dispute in the instant case that some properties of the petitioner were distrained by the revenue for the purpose of recovery of the tax due and such distrained articles have not been so far sold or otherwise dealt with so as to enable them to proceed under section 48 of the Revenue Recovery Act and cause his arrest to be made. The learned counsel for the department, however, contending contra would state that section 45 of the Madras General Sales Tax Act is a particular section, dealing with a particular situation and matters, which refers to offences and penalties and this section cannot, therefore, be compared for any purpose with the effect and import of the conjoint application of se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to order the said application and direct the recovery of the said amount as if it were a fine imposed by him. This fictional imposition of a fine is intended for the purpose of recovering the amount due. This is provided for in clause (b) to sub-section (2) of section 24. The proviso to this sub-clause indicates the manner in which such an application to the Magistrate can be made. We are not, however, concerned with it. I have only referred to this section and its limbs just to sustain the legislative intent prescribing for more than one method of recovering and collecting the arrears of tax as provided for in section 24 itself. The fourth method and no doubt a special method by which the Commercial Tax Officers could recover any such amount due under the Act is by invoking the Revenue Recovery Act, 1864. Section 29 of the Madras General Sales Tax Act provides that a Commercial Tax Officer shall have the powers of a Collector under the Madras Revenue Recovery Act, 1864, for the purposes of recovery of any amount due under this Act. This method of recovery is to set in motion by the power referred to in section 48 of the Revenue Recovery Act. Section 48 of the Revenue Recovery Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 45 of the Madras General Sales Tax Act as well as under section 48 of the 'Revenue Recovery Act. If the revenue seeks the process of a criminal court, it has to bring home the offence beyond reasonable doubt and until it is so established, the offence cannot be said to have been proved. On the other hand, section 48 of the Revenue Recovery Act deals with the subjective satisfaction of the Collector or the Joint Commercial Tax Officer in this case, as regards the contumacious conduct of the defaulting assessee; no doubt such a conclusion should be based on objective material; but so long as such material is available and the decision is arrived at by the statutory authority that the defaulting assessee is gulity of fraudulent conduct in order to evade payment, and such a decision or conclusion is not perverse or one which a reasonable person cannot come to, then it is not open to interference by higher hierarchy. If it is a reasonable conclusion, if there is basis for the decision and if there is material to act, then, nothing prevents the revenue to take concurrent action under section 48 of the Revenue Recovery Act, 1864, and proceed against the defaulting assessee and seek for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be fraudulent even at its threshold. If action is taken by the appropriate authority to punish a person for such an offence he must prove the same to the hilt and any doubt in such proof would go invariably to the benefit of the accused. In these circumstances, the statutory authority may avail itself of this process so as to bring to book offenders who are guilty of such contumacious conduct for fraudulently evading the payment of tax. I have already stated that this process can be undertaken notwithstanding section 48 of the Revenue Recovery Act. But it should be said that when the revenue do refer to the provisions of section 45 of the Madras General Sales Tax Act there are certain guidelines which are to be remembered before the said provision is set in motion. Even so in section 48 of the Revenue Recovery Act there should be material to satisfy the Commercial Tax Officer that there has been a fraudulent evasion of admitted liability but that by itself would not be enough to cause the arrest of the delinquent. Principles of natural justice have to be borne in mind and the officer concerned has to give a full opportunity to the accused-assessee and thereafter, decide on coge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrest is no more than a mode for recovery of the amount due. There is nothing in the Act which requires the Collector to give the defaulter an opportunity to be heard before arresting him. " I respectfully adopt the above ratio even to the facts of this case. One other contention of the learned counsel for the petitioner needs reference. The argument is that it is the same officer who has to invoke both section 45 of the Madras General Sales Tax Act and section 48 of the Revenue Recovery Act. As the power is vested in the same official the apprehension is that there is likelihood of misuse. Each case has to be decided on its own merits. In the absence of any mala fides such an assumption need not necessarily flow from a reading of sections and from the entitlement of the officer to invoke one or other of the above sections relating to mode and recovery of tax. But in the view that I hold that he can avail himself of both the provisions against the same delinquentassessee, no question of discrimination on this ground arises as well. The learned counsel for the revenue raised a question as to the maintainability of this writ petition since the petitioner has come even at the thresho ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
