Decided on July 24,1952



- (1.) THIS is a criminal appeal filed by the State against the acquittal of the accused in C.C. No. 176 of 1950 on the file of the Sub-Divisional Magistrate (Judicial), Bellary. The facts are : Pavadasetty Malkajappa, a merchant of Bellary and running a Dalali shop there, was charged for failure to pay the arrears of sales tax Rs. 563-10-11 for 1948-49 and 1949-50. The accused is an assessee on the file of the Deputy Commercial Tax Office, Bellary, with G.I. No. 1016. The Department exhausted all civil measures of collecting the tax from him and as he failed to pay the tax and thus committed an offence punishable under section 15(b) of the Madras General Sales Tax Act, 1939, a charge-sheet was laid against him. The learned Magistrate acquitted the accused on two grounds, viz., that the accused was a commission agent and not a dealer following the decision in Provincial Government of Madras v. Veerabhadrappa and accordingly, that on his examining the assessment for the years 1948-49 and 1949-50 he, the Magistrate, came to the conclusion that the assessment should not have been levied.
(2.) IT is pointed out on behalf of the State that neither of these reasons given by the Magistrate can be made a ground for acquitting this accused. So far as the first point is concerned the conclusion of this Magistrate based on Provincial Government of Madras v. Veerabhadrappacannot be supported because this decision has been dissented from in the Full Bench decision of this Court in Radhakrishna Rao v. Province of Madras 1952 (1) MLJ 494 In regard to the second point, it is contended that the latest decision of this Court in Pasha Saheb v. King (1950 M.W.N. 57 (Crl.)clearly lays done that the criminal Court is precluded from going into the liability of the assessee for the assessment, if the assessment has been levied for a period after 1st January, 1948. But the Magistrate has rested his ground for going into the assessment after 1st january, 1948, not on any decision of this Court but upon certain ex cathedra observations as follows :- "In introducing Section 16A of the Madras General Sales Tax Act, 1939 the jurisdiction of criminal Courts was ousted in that respect and that was upheld by his Lordship Justice Panchapakesa Ayyar. But the enactment of Section 16A did not also oust the jurisdiction of a Civil Court and the right of a citizen preserved under Section 176 of the Government of India Act, 1935, cannot be abrogated by a Provincial enactment. Accused's right not to be taxed was guaranteed by the Division Bench ruling in Provincial Government v. Veerabhadrappa and conviction based on Pasha Saheb v. King (1950 M.W.N. 57 (Crl.) must land the Government in a civil suit for refund of taxes thus collected and damages as well." I am unable to deduce from these observations any ground for holding that the assessment cannot be levied. In the result, it has been shown that the order of acquittal is thoroughly incorrect and cannot be supported. It is hereby set aside and the accused is convicted as charged and he is sentenced to pay a fine of Rs. 50. In addition he is directed to pay the sales tax due from him, viz., Rs. 563-10-11 and it is directed to be recovered from him as a fine. Acquittal set aside.;

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