THIMMINA KATTE KOTRAPPA Vs. ASSISTANT SALES TAX OFFICER

JUDGEMENT

(1.) The petitioner is a firm alleged to be doing business at Davanagore which was prosecuted by the Assistant Sales Tax Officer under Section 20, Mysore Sales Tax Act of 1948 for default in payment of sales tax within the time allowed for which it was assessed. In answer to the charge, the petitioner pleaded that he had been served with a demand notice for Rs. 639-8 but stated that he did not transacts any business at all, implying thereby that he was not liable to assessment. The learned Magistrate repelled the objection and sentenced him to pay a fine of Rs. 100 and directed that the amount of Rs. 639-8, the tax levied to be recovered as if it were a fine. This petition is directed against that judgment.

(2.) Sri Gopivallabha lyengar, the learned counsel for the petitioner, raised two contentions before this Court viz., that the learned Magistrate was incorrect, when he construed the statement of the accused as a plea of guilty; and that the petitioner was not afforded an opportunity to substantiate his contention that he was not legally assessed; and he relied upon two decisions reported in In re Narasingamuthu, A. I. R. (36) 1949 Mad. 116 : (60 Cr. L. J. 118), and the other at', p. 418 of the same volume (In re Appa Rao, A.I.R. (36) 1949 Mad 4l8: 50 Cr. L.J. 547). The first of these decisions deals with the burden of Imbility and holds that it is sufficient it a prima facie proof of liability of the assessee has been furnished by the prosecution to shift; thy burden on to the assessee to affirmatively prove that the offence had not been committed. The prosecution has affirmed that the assessee petitioner has been assessed on 27-2-1950 and served the demand notice on him. The fact of service has been admitted by the accused. These facts are sufficient to establish prima facie that there was an assessment and demand has been made which is not complied with, in which case the burden that there was no assessment or demand has not been made otherwise shifts on to the accused. The case under consideration does not help the petitioner much.

(3.) The other point raised implies a claim on behalf of the petitioner that in view of his statement that he did not transac any business during the years to which the asseassment pertained, the Court was bound to enquire into the legality of the assessment, and relies upon the case reported in In re Appa Rao, A. I. R. (36) 1949 Mal 413 : (50 Cr. L. J. 547) that in similar circumstances under Section 15 (b) of the old Act as it stood before the amendment, the Court held that it was open to the accused to prove that the tax was not legally due. The case is obviously not applicable is view of the fast that the expression required to be interpreted in Section 2o (b) of the Mysore Act "fails to pay any tax assessed on him." This expression is similar to the amended expression contained in the amended Act of Madras. The expression "due" in the old Act is interpreted to mean "lawfully due". Inferentially it means that the interpretation of the word "duo" stands on a different footing than the word "assessed". I am unable to agree with contention of the learned counsel who maintains that the expressions due" and "'assessed" connote the same meaning. I am here concerned with the interpretation of the expression "tax assessed" and not the "tax duo". If the scheme of the Mysore Sales Tax Act is examined, it is clear that provision is made for appeals, revisions and reference , and above all for reductions and exemptions. Presumably the assesses has not resorted to any of the remedies provided nor is the invalidity of the tax tested either in appeal or revision. Consequently the assessment has become final. Section 13 provides for the recovery of tax assessed under the Mysore Act and Section 22 prohibits the civil Courts from questioning by appeal or application by way of revision the assessment made or an order passed by the assessing authority. If the provisions contained in the Act or the rules made thereunder, and the method and the manner in which the orders are made, are precluded from the cognisance by civil Courts which evidently constitute proper forum to test the Legality or otherwise of the orders a fortiori it follows that in prosecutions which are merely meant to penalise the default and enforce the payment of the tax assessed, the validity of the tax assessed, cannot be questioned by Criminal Courts. In this view, the conviction must be upheld. This petition fails and is dismissed.