Decided on September 08,1967



SADASIVAN,J. - (1.) The petitioner was assessed to profession tax under the provisions of the Travancore - Cochin Panchayats Act, 1950 for the four half years, 01/10/1953 to 03/09/1955. He was duly served with notices of demand. He met these notices with protests but not with payment and has not, to this day, paid the tax assessed. The Travancore - Cochin Panchayats Act provided for the recovery of arrears of tax by resort to the Revenue Recovery Act it did not provide any other mode of recovery, and, in particular, did not make non payment an offence but, whether any steps were taken for such recovery we have not been told, and, if they were, it is clear that they must have ended in failure. The Travancore - Cochin Panchayats Act was repealed on 01/01/1962 by S.151 of the Kerala Panchayats Act, 1960 for short, the Act. However, Clause.8(2) of the transitional provisions in schedule V of the Act says: "All arrears of tax or other payments by way of compensation for a tax or due for expenses or compensation or otherwise due to a Panchayat at the commencement of this Act may be recovered as if they had accrued under this Act." And, the second proviso to S.74 of the Act which came into force on 01/01/1962 says with reference to recovery of arrears of tax (for which the first proviso authorises, subject to the rules, the distraint and sale of the movable properties of the defaulter): "Provided further that, if for any reason the distraint or a sufficient distraint of the defaulter's property is impracticable, the executive authority may prosecute the defaulter before a Magistrate". The Kerala Panchayats (Taxation and Appeal) Rules, 1963 for short, the Rules made under S.74 and 129 of the Act came info force on 20/03/1963. R.26 of these rules makes the wilful omission to pay the amount due from him by a person prosecuted under the second proviso to S.74 an offence punishable with fine not exceeding twice the amount due from him; it also provides for summary recovery by the magistrate of the amount due. On 16/07/1963 a notice of demand was served on the petitioner for the tax in arrear as required by R.13 of the Rules which makes service of such a demand a condition precedent to action under S.74. To this the petitioner replied on 26/07/1963 denying liability; and a further notice of demand elicited a similar response on 9-3-1964. On 17-9-1965 a distress-warrant was issued, but that was returned on 20 9 1965 with the endorsement that distraint was impracticable since the petitioner had no movable property within the Panchayat area under R.23 of the Rules only movable property found within the Panchayat area can be distrained. The condition precedent to a prosecution under the second proviso to S.74 of the Act, namely, that a distraint of the defaulter's property was impracticable being thus satisfied, the Executive Authority laid a complaint before the Additional First Class Magistrate, Karunagapalli on 28/09/1965 charging the petitioner with an offence under S.74 of the Act read with R.26 of the Rules. The petitioner's principal defence was that Art.20(1) of the Constitution was a bar to his conviction, the act charged against him as an offence having been committed by him before S.74 of the Act and R.26 of the Rules came into force. That and certain other defences taken by him were overruled and he was convicted of the offence charged against him and was sentenced to pay a fine of Rs. 25/-, in default to undergo simple imprisonment fora week. It was further ordered that "arrears of tax amounting to Rs. 385/- and notice fees, warrant fees etc. amounting to Rs. 150/- will also be realised from him." The petitioner having unsuccessfully moved the District Magistrate to make a reference to this court under S.438 of the Criminal Procedure Code has come up himself with this petition under S.435 and 439. And, since it was thought that there was a conflict between the division bench ruling in Paul v. Karthiyani 1967 KLT 27 and the ruling of a single judge in Muhammed Lubba v. Neelambaran, 1967 KLT 249 the case has been referred to a full bench.
(2.) An offence, the General Clauses Act, S.3(38), tells us is "any act or omission made punishable by any law for the time being in force." And what Art.20(1) of the Constitution says is: "20. (1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence." The question then is: did the petitioner commit an act we are using the word "act" to include also an omission made punishable by S.74 of the Act read with R.26 of the Rules after these provisions came into force
(3.) The prosecution in Paul v. Karthiyani, 1967 KLT 27 was not for wilful omission to pay tax but for wilful prevention of distraint which also is an offence under R.26 of the Rules read with S.74 of the Act The prevention in that case was after both the section and the rule had come into force although the arrears of tax had accrued due earlier under the provisions of the Travancore - Cochin Panchayats Act. Hence no question of the application of Art.20(1) of the Constitution arose in that case the act charged as an offence was committed after the law which made it an offence had come into force. But the defence was nevertheless taken, and, in passing, their Lordships observed "the gravamen of the offence charged against the accused is the continued default in payment of the tax leading to distraint proceedings and the impracticability of distraint and / or wilfully preventing such distraint." The rejection of the defence was however based on the definite finding that the wilful prevention of the distraint took place long after the provisions of law making such prevention an offence came into force.;

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