PUBLIC PROSECUTOR Vs. MULLANGI SOOLAPPA

JUDGEMENT

(1.) This is an appeal preferred by the Public Prosecutor on behalf of the State of Madras in the High Court of Madras against the judgment dated 14-2-1953 in C. A. 31/53 on the file of the Sessions Judge, Bellary, acquitting the accused in reversal of the decision of the Additional District Munsiff cum First Class Magistrate, Bellary, in C.C. No. 97/52 convicting the respondent of offences punishable under S. 15(b) of the Madras General Sales Tax Act, 1939, as he failed to pay sales tax of Rs. 3,264-0-6 under the final assessment for the year 1950-51 and also sales tax of Rs. 3,531/- under the provisional assessment for the year 1951-52 on or before the specified date. In pursuance of Section 41(2) of the Andhra State Act, 1953, the Chief Justice of Madras transferred the appeal to the High Court of Mysore.

(2.) In the trial Court, the accused contended that he had not been duly served with copies of the notices in respect of the final and provisional assessments in question in accordance with the provisions of Rule 28, Madras General Sales Tax Rules, and that the accused having been provisionally assessed to sales tax for the year 1951-52 as late as 12-2-1954 when the year was virtually nearing its end and called upon to pay the tax on or before 21 days from the date of service of the demand notice which was served on him on 3-3-1952, he was deprived of the benefit provided under the Act for payment of the provisional tax in instalments and that the prosecution was therefore vitiated by the said two vital defects. Neither of these contentions found favour with the learned trial Magistrate who convicted the accused as mentioned above and sentenced him to pay a consolidated fine of Rs. 350/- and in default to undergo simple imprisonment for two months and two weeks apart from the payment of the final tax and the provisional tax which were to be recovered as fine.

(3.) The accused preferred an appeal to the Court of Sessions, Bellary Division. Before that Court he also urged that the assessment was 'ultra vires' of the Act. The appellate Court rejected the second contention on the ground that it had not been raised before the trial Court, refusing to accede to the argument that the said contention was covered by a memo dated 14-11-1952 filed on behalf of the accused. As regards the first contention, the learned Judge held that the service of the notices in question was not in conformity with Rule 28, Madras General Sales Tax Rules, and this defect exonerated the accused from the operation of Section 15 (b) of the Act since, in the absence of a valid service of the notices, no question of failure to pay within the time allowed could arise. He, therefore, set aside the conviction and acquitted the accused. The State of Madras appealed against this decision challenging the correctness of the appellate Court's view in regard to the validity of the service of the notices in question.