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TMI Blog1993 (10) TMI 328X X X X Extracts X X X X X X X X Extracts X X X X ..... ading also the State of Tamil Nadu (first respondent) praying for issue of a writ of certiorari to quash the same contending that the revenue recovery proceedings pending disposal of the appeals are not legally permissible. 3.. The petitioner also filed W.M.P. No. 24682 of 1993 praying for stay of all further proceedings by enforcement of the distraint order, pending disposal of the writ petition. 4.. When the writ petition, along with W.M.P. came up for admission on August 25, 1993, this Court directed Mr. T. Ayyasamy, learned Government Advocate (Taxes) to take notice and accordingly he did so. 5.. Mr. S. Sivanandam, learned counsel appearing for the petitioner then submitted with all vehemence that resortment to recovery of tax, by initiation of revenue recovery proceedings under the Revenue Recovery Act, pending appeals, is an extreme step and the property of the petitioner-assessee, if sold in such proceedings, being in the nature of distress sale, would fetch only a distress price, with bleak or no possibility of restoring the status quo ante, in case the petitionerassessee succeeds in those appeals and therefore it is but proper for this Court to admit the writ petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Learned Senior Counsel, in all fairness, also referred to the case of Maligai Lotteries v. State of Tamil Nadu [1993] 3 MTCR 327, in which another learned Judge of this Court, in distinguishing the Division Bench decision of this Court in Estee Hubs Drives (P) Ltd. v. Assistant Commissioner (CT) [1988] 70 STC 345 (Mad.) as well as the decision of a learned Judge of this Court in the case of C. Kuppuraj v. Deputy Commercial Tax Officer [1992] 1 MTCR 330, took a view contrary to that taken in them. After referring to the case of Maligai Lotteries v. State of Tamil Nadu [1993] 3 MTCR 327, learned Senior Counsel would say that the distinguishing features brought about by the said learned single Judge to take a contrary view do not appear to be correct, inasmuch as the material provisions as relatable to the recovery of the tax or other amount due under section 24 of the TNGST Act remained intact, notwithstanding the fact that the said section was substituted by the Tamil Nadu Act 78 of 1986, which came into force on January 1, 1987. 9.. Two shades of opinions were focussed for consideration by learned Members of the Bar, who participated in the discussion; one supporting the view, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the payment of tax before the disposal of the appeal or revision, as the case may be, although preference and pending of an appeal or revision is not a bar for collection of tax or other amounts due or payable; (5) empowering under section 29 of the TNGST Act the territorial Assistant Commissioner or an Assistant Commissioner (Assessment) to have the powers of a Collector under the Tamil Nadu Revenue Recovery Act, 1864 (Tamil Nadu Act II of 1864-for short "the RR Act") for the purpose of recovery of any amount due under the TNGST Act and also to have the powers of the Commissioner under the Madras Rent and Revenue Sales Act, 1839 (Central Act 7 of 1839), for the sale of the property distrained for any amount due under the TNGST Act, of course, subject to the control and superintendence of the Deputy Commissioner and the Commissioner of Commercial Taxes. 12.. A bird's eye view of the scheme for the collection of the tax or other amount due under the TNGST Act, as aforesaid, may further be elucidated, in order to drive home the point with reference to the relevant statutory provisions. 13.. A survey of the provisions adumbrated under sections 12, 13, 16, 24, 26 and 29 and rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax under this Act for the purpose of collection and recovery, as had been provided under section 25. 16.. It may be emphasised here that the correctness or otherwise of the tax or the other amount due under this Act is not to be tested by way of appeal or revision, before ever recovery proceedings are initiated and to put it otherwise, the amount due never ceases to be due or eclipses even temporarily the moment an appeal or revision is filed and such tax due or other amount payable under the TNGST Act, apart from being a charge on the properties of the person or persons liable to pay tax, is also immediately recoverable through any one of the modes indicated, namely, as land revenue or on application to any Magistrate, as if it were a fine imposed by him under sub-section (2) of section 24. 17.. In addition to anyone of the modes to be pressed into service, it is also permissible to resort to the recovery of the tax due or other amount payable by resorting to garnishee proceedings under section 26. 18.. It is of some signal significance to take note of here that interest at two per cent per month for the amount of tax due or payable for the entire period of default, as had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cursory perusal of the appeal or revisional provisions also indicates in no uncertain terms that the preference of the appeal or revision is no bar for recovery of tax due or other amount payable in accordance with the order of assessment, unless by way of a specific direction, collection of tax due or other amount payable, sought to be recovered, is stayed, pending disposal of the appeal or revision, as the case may be. 24.. Unlike such a provision, there is a salient provision, in the shape of proviso (2) to sub-section (3) of section 24 postponing payment of interest the moment the appeal or revision, as the case may be, had been preferred and the said proviso runs as under: "Provided further that where a dealer or person has preferred an appeal or revision against any order of assessment under this Act, the interest payable under this sub-section, in respect of the amount in dispute in the appeal or revision, shall be postponed till the disposal of the appeal or revision, as the case may be, and shall be calculated on the amount that becomes due in accordance with the final order passed on the appeal or revision as if such amount had been the subject-matter of the appeal o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of a statute must be collected from the plain and unambiguous expression used therein rather than from any notions which may be entertained by the court as to what is just or expedient." 28.. The Supreme Court, in the process of consideration of the duty of the court to interpretation of statute and dealing with the effect and importance of the maxim "ut res magis valeat quam pereat" in the case of Commissioner of Sales Tax v. Mangal Sen Shyam Lal [1975] 35 STC 621 (SC) at p. 629; AIR 1975 SC 1106, at paragraph 27 said thus: "A statute is supposed to be an authentic repository of the legislative will and the function of a court is to interpret it 'according to the intent of them that made it'. From that function, the court is not to resile. It has to abide by the maxim ut res magis valeat quam pereat, lest the intention of the Legislature may go in vain or be left to evaporate into thin air. Where that intent is clearly expressed in the language of the Act, there is little difficulty in giving effect to it. But where such intent is covert and couched in a language which is imperfect, imprecise and deficient, or is ambiguous or enigmatic and external aids to interpretation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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