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TMI Blog1971 (7) TMI 149X X X X Extracts X X X X X X X X Extracts X X X X ..... otes which were required under such circumstances under section 44 of the Tamil Nadu General Sales Tax Act. Therefore, he gave two memos, both of the same date, namely, 2nd January, 1967. The first one was to call upon the petitioner to compound the offence under section 46 of the Act, the offence itself being a contravention of one of the provisions of the Act which is treated as an offence under section 45(2)(d). He was asked to compound the offence by paying a sum of Rs. 1,000 and for failure to pay the same, the petitioner was threatened with prosecution. In the second memo, the petitioner was called upon to pay advance sales tax under section 42(3) of the Act read with rule 35 of the Tamil Nadu General Sales Tax Rules, 1959. The petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion made by the petitioner through his counsel was returned with the following endorsement: "The representation should be from the party affected or from the person duly authorised. It is open for the party affected to seek remedies provided under the M.G.S.T. Act from the appropriate authority. " Being fortified by the earlier order granting liberty to file appropriate writ petitions to quash the order of the Check Post Officer, the petitioners have filed these writ petitions to quash the order dated 2nd January, 1967. Learned counsel for the petitioner raised two contentions before me. The first one is that the levy of the composition fee by itself is not justified and there should have been an enquiry into the matter as to the cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the Check Post Officer, who found that the transport was without the relative documents being in possession of either the owner or the person-in-charge of the vehicle transporting the goods, found the petitioner guilty of an offence under section 45 and gave him an option to compound such an offence. This is a provision which is not challenged before me. As the composition of an offence under certain stated circumstances as prescribed under the statute is a power which could be vested in an appropriate authority by the Legislature and as it has nothing to do with the sale or purchase of goods, I am unable to agree that the power itself could be questioned in these proceedings in such a summary manner. The proceedings to compound the offe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpose the levy, notwithstanding the fact that no sale or purchase is involved at or about the time when the levy is called for. The preamble to the Tamil Nadu General Sales Tax Act, 1959, says that it is an Act to consolidate and amend the law relating to the levy of a general tax on the sale or purchase of goods in the State of Tamil Nadu. Therefore, it follows that it is only in a situation where a sale or purchase is effected, that sales tax could be levied. In the absence of definite proof or cogent material to support such a sale or purchase of goods at or about the time when a statutory officer levies tax on such goods in the possession of another, it ceases to be sales tax. The tax demanded in the instant case as advance tax is not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thers v. R.S. Jhaver and Others[1967] 20 S.T.C. 453 (S.C.). , wherein it struck down the power conferred under the Madras General Sales Tax Act, 1959, upon the officer of the Government to seize such accounts, registers, records or other documents of the dealer as he may consider necessary, if he has reason to suspect that any dealer is attempting to evade payment of any tax, fee or other amount. No doubt, this was incidentally referred to by the Supreme Court though it was not applicable to the facts in Check Post Officer v. K.P. Abdulla and Bros.[1971] 27 S.T.C. 1 (S.C.). The point, however, is that the law is now settled that unless there is a sale, no sales tax is leviable. Any provision deeming such vesting of authority in a statutory ..... X X X X Extracts X X X X X X X X Extracts X X X X
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