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TMI Blog1973 (2) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... the chalans. Under the relevant rule, the payments have to be made before the 10th of every month. In 1966-67, the company committed defaults in paying the amounts on the respective dates on four occasions; and in the next year 1967-68, the company committed such defaults on eight occasions. The delay in payments ranged from one day to nine days. The company contested the legality of the notices, exhibits PI and P2, in revision before the Deputy Commissioner of Agricultural Income-tax and Sales Tax, the second respondent, who rejected the revision petitions under exhibits P24 and P25 respectively. Further revisions were filed before the third respondent, the Board of Revenue, who also rejected the revision petitions by orders exhibits P35 and P36. Thereafter, the present writ petition has been filed by the company to quash the notices and the orders passed by the Deputy Commissioner and the Board of Revenue, viz., exhibits PI, P2, P24, P25, P35 and P36. Before we go into the merits of the case, we shall just advert to the relevant provisions touching the matter. Section 23(3) of the Kerala General Sales Tax Act, 1963, is the section under which the notices were issued. The sub-sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yment of the penalty under rule 31. It is not necessary to extract this form; its language is similar to the language of form 11. The counsel of the petitioner has raised four or five grounds before us to have the notices and the orders quashed. The first contention raised is a minor one. The counsel has urged that in some cases the delay is only of a day, and if the language of the notice (form 11 notice) is "by the 10th", the question arises whether the 10th of the month will also be included or should be excluded in considering the time. This contention will turn out, on scrutiny, to be of no force, because form 11 does not contain the expression "by the 10th"; what it contains is "before the 10th day of the succeeding month". Evidently, the remittances should have been before the 10th, with the result that there was delay in making these remittances too. The next contention urged by the counsel relates to the cause of the default. It is urged-and this fact is not seriously disputed and cannot be disputed either-that the default in making the remittances was due to causes beyond the control of the company. In some instances the 10th of the month happened to be a Government h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then there is discrimination also under article 14 of the Constitution, since the same difficulty might not arise in the other cases where payment is made by demand draft or crossed cheque. This contention is equally devoid of merit, because the choice of the particular mode of payment was made by the company itself and it was not something which was thrust on the company. Therefore, no question of discrimination under article 14 also arises. The next argument of the counsel is that, in imposing penalty, there is discretion and the imposition of penalty is a quasi-judicial act, where the discretion should be properly exercised after giving the person an opportunity to be heard. The counsel has cited quite a few decisions on this aspect arising on the relevant provisions of the Indian Incometax Act of 1922. Two of the decisions brought to our notice are of our own court. They are Devassy v. Commissioner of Income-tax[1972] 84 I.T.R. 502; I.L.R. (1971) 2 Ker. 351. and M/s. Dawn Co., Quilon v. Commissioner of Income-tax, Kerala[1973] 87 I.T.R. 71; I.L.R. (1971) 2 Ker. 359. Two other similar decisions are of the Supreme Court. One of them is M/s. Hindustan Steel Ltd. v. The State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecisions cited by the counsel of the petitioner cannot have any application to the case. Looking at the case, once again, from the angle of natural justice, we would point out that the statutory provision, we mean section 23(3), excludes the application of the rules of natural justice, and in such cases, we cannot ignore the mandate of the Legislature; the mandate of the Legislature is clear in the language of the section we cannot read into the concerned provision the rules of natural justice; that will not be consistent with the language of the section vide Union of India v. J.N. SinhaA.I.R. 1971 S.C. 40. The counsel has also made an attempt to equate the penalty payable under section 23(3) to a criminal liability. He has drawn our attention to cases which hold that, in a criminal offence, mens rea is a necessary ingredient. For instance, the House of Lords has laid down in Sweet v. Parsley[1969] 2 W.L.R. 470 (H.L.)., that mens rea is an essential ingredient of every offence, unless some reason can be found for holding that it is not necessary, and the court ought not to hold that an offence is an absolute offence unless it appears that that must have been the intention of the Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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