PAUL Vs. STO

JUDGEMENT

(1.) In both these cases the question that has been raised for consideration of the court is whether under S.23(2)(b) of the Kerala General Sales Tax Act, 1963 (shortly stated the Act) an Executive Magistrate will have jurisdiction to proceed with the recovery of the tax on application made to him. S.23(2) may be usefully extracted below:

(2.) The contentions that are taken up by petitioners in these cases are that the Executive Magistrate has no jurisdiction to proceed against the petitioner for recovery of tax as if it were a fine imposed by him for the simple reason that he has no power to impose a fine on the petitioners. It is contended that after the advent of the new Criminal Procedure Code a clear line is drawn between the powers exercisable by an Executive Magistrate and Judicial Magistrate. Only Judicial Magistrates have got the power to impose a fine on the citizens. Therefore, for this reason the proceedings initiated against the petitioners for recovery of tax is vitiated. It is urged that the 'Magistrate' referred to in S.23(2)(b) of the Act can only mean a Judicial Magistrate in the light of S.3 clause (4) of the Criminal Procedure Code, 1973. S.3(4) reads:

(3.) In support of the contention learned counsel for the petitioners placed reliance on the decision of a Division Bench of the Mysore High Court in Mohanlal Premchand v. Commercial Tax Officer, Bagalkot (28 STC 492). In that case S.13(3) of the Mysore Sales Tax Act, 1957 came up for consideration. As in the Kerala Act S.13(3) of the Mysore Act says that 'any tax, assessed, or any other amount due under this Act from a dealer, may without prejudice to any other mode of collection, be recovered on application to any Magistrate, by such Magistrate 'as if it were a fine imposed by him.' The Mysore High Court said that looking at S.13(3)(b), it is clear that the application can he made to any Magistrate. The Magistrate entertains the application because he is an authority designated for the purpose. It was held that the Magistrate acting under the provision is not a court but a pessona designata. But then with regard to the contention that had been raised by the Government Pleader in that matter that his powers are not limited by any provisions of the Code of Criminal Procedure, the court said that the Act does not provide the mode and manner of recovery, for which one will have to look into the provisions of the Code of Criminal Procedure. The Act only says that the application shall be made to a Magistrate who shall recover the tax as if it were a fine imposed by him. Therefore, it was held by the Mysore High Court that the power to recover the fine is, circumscribed by the limits of the power to impose a fine. The court held that by resorting to the procedure under S.386 of the Code of Criminal Procedure, a Magistrate designated under S.13(3)(b) of the Act, in the absence Of any other provision, cannot recover any amount as if it were a fine, in excess of the limits prescribed under S.32 of the Code of Criminal Procedure, 1898.