VAIKUNTHRAO RAYAPPA Vs. C T O SIRSI

JUDGEMENT

(1.) The petitioner is a dealer in betel nuts at Sirsi, Uttara Kannada Dt. He obained refund of Central Sales Tax in the sum of Rs. 57,286-00 on account of the decision of the Supreme Court in Yadalam's case 16 STC 231 SC However, in 1969 the Central Sales Tax Act came to be amended with retrospective effect resulting in tax being levied on betel nuts. The petitioner was, therefore, bound to return the refunded tax. He made an application on 3-2-75 that he may be permitted to pay back the refunded tax in instalments. The tax related to the assessment years 1957-58 to 1964-65. The Commissioner by his order dated 8-9-1975 sanctioned instalments at Rs. 5,000-00 per month for the first 10 months and the balance being paid in a lumpsum as the 11th and final instalment. The petitioner paid back this amount as ordered by the Commissioner within the period stipulated in the order of the Commissioner a copy of which is at Annexure A to the petition. The first instalment fell due from the commencement of the month of September in 1975. The petitioner, accordingly, has paid back the refunded tax in the sum of Rs. 57,286-00.

(2.) On account of the representation of the Chamber of Commerce and Merchants' Association and on the instruction of the State Government, the Commissioner of Commercial Taxes, the 2nd respondent herein, , issued a circular dated 7th Dec. 1976 by which the Government clarified that no penalty should be imposed for tax which was due prior to 1st September, 1976. Thus being aggrieved by the demand notice of the 1st respondent bearing the date 17-12-79 calling upon him to pay a sum of Rs. 10,613.19 as 'penalty under section 13(2) of the Karnataka Sales Tax Act (hereinafter referred to as 'the Act') which is produced at 'Annexure-C' to the petition, the petitioner has approached this Court under article 226 of the Constitution of India inter-alia contending that the same is liable to be quashed as being without the authority of law and as illegal.

(3.) The facts are not in dispute. The learned Counsel appealing for the respondents has merely asserted that the Commissioner had no authority under law to order repayment of tax in instalments and therefore, the 1st respondent was not bound by it. This submission is stated only to be rejected. There are two reasons to reject the same. First, it must be stated that a similar question came up for consideration before a Division Bench of this Court in the case of Abdul Shakur Umar Sahigara & Co., v. CTO Addl. Circle, Mangalore (1968) 1 Mys.L.J. 449. Their Lordships in that decision held that under section 13 of the Karna;taka Sales Act the dealer became a defaulter only when he neglected to make payment of tax when it became due and not otherwise. They also held having regard to section 3-A of the Act, that a direction by the Government to pay tax in instalments would absolve the assessee from being penalised under section 13 (2) of the Act unless he made default in the payment of instalments. I do not see any reason why the ratio of that decision should not be applied to the facts of this case.