V S AYYAPPAN Vs. STATE OF KERALA

JUDGEMENT

(1.) These two petitions are by a trader assessed under the General Sales Tax Act for the two years 1960-61 and 1961-62 against his convictions for non payment of taxes for those years. The questions raised are the same in both.

(2.) On October 29, 1963 the petitioner's place of business was inspected by the Intelligence Officer, Palghat, when "a second series" of account books were seized. On the basis of transactions disclosed by them he was assessed on escaped turnovers in the years 1960-61 and 1961-62 by orders dated March 5 and 4, 1964, to pay Rs. 460.26 and Rs. 1650.41 respectively. Though demand notices were served on the assessee on May 9, 1964, he did not pay the taxes. It was also found that on November 22, 1963, he had executed a sale of his properties to his son, waiving price on account of affection. The Revenue launched two prosecutions against him one for each year of assessment under S.46(1)(f) and 46(2)(c) of the Kerala General Sales Tax Act, 1963 (hereafter 'the new Act'); and the Sub Divisional Magistrate, Kunnamkulam, convicted him under both provisions, finding the sale to his son to have been made in order to evade payment of the taxes and fined him Rs. 450 and Rs. 1000 with one month's simple imprisonment in default in each case under S.46(1)(f)and sentenced him to one month's simple imprisonment in regard to each year of assessment under S.46(2)(c). On appeal, the Additional Sessions Judge, Trichur, confirmed the convictions and sentences. Hence these revision petitions.

(3.) Counsel contended that the taxes, in regard to which the two prosecutions were launched against the petitioner, arose under the General Sales Tax Act, 1125 (hereafter 'the old Act'), and therefore the relative prosecutions can be under that Act alone, and that the instant convictions and sentences under the new Act are illegal. I see little force in this contention. As has been indicated by Raman Nayar J., with concurrence of Varadaraja Iyengar J., in State of Kerala v. Krishnan (8 STC 738) the gist of an offence in this regard is a deliberate default in payment of tax assessed. Under S.13 of the old Act, tax was to be paid within the time specified in notice of assessment; and under S.23 of the new Act, taxis to be paid within the time specified in notice of demand. The assessee cannot therefore be said to have defaulted payment of tax before expiry of the period specified in the concerned notice. It is conceded that during currency of the old Act, no assessment was made and therefore no notice of assessment or of demand was served on the petitioner. It follows that no offence was committed then.