N ANNAIYAPPA Vs. ASSISTANT COMMERCIAL TAX OFFICER BANGALORE

JUDGEMENT

(1.) This is a revision petition under S.13(4) of the Mysore Sales Tax Act, 1957, against the order dt.21-11-1970 by which the learned Second Magistrate, Bangalore, issued a warrant for the attachment of moveables belonging to the petitioner for recovery of arrears of sales tax for the year 1967-68 and 1968-69 amounting to Rs.496-60P. The said sum represents the tax determined under final assessment for the year 1967-68 and the tax provisionally fixed for the year 1968-69, besides penalty. ,

(2.) It is stated frem the Bar that even for the year 1968-69, the petitioner was finally assessed as per the assessment order dt. 18-11-1970. Mr. Gandhi, learned Counsel for the petitioner, therefore, contended that when once a final assessment was made, the demand made under the ordar of provisional assessment could not be enforced. Mr. S. R. Rajasekhara Murthy, learned Counsel for the State. does not dispute this proposition. He also brought to our notice a memo filed by the respondent be for the Magistrate, which reads thus:

(3.) The nevt contention of Mr. Gandhi relates to the validity of the warrant issued by the Magistrate for the levy of the amount by attachment of moveables. The warrant was admittedly issued under clause (a) of sub-sec.(1) of S.386 CrlPC. According to him clause (a) applies only to the offender against whom a sentence of fine is awarded by the Magistrate whereas the recovery of dues from a defaulting assessee could be made only by a warrant issued under clause (b) of the section. S.386 so far as it is relevant provides;