STATE OF KERALA Vs. P KRISHNAN

JUDGEMENT

(1.) The State appeals against the 'acquittal of the same accused person of three offences under S.15 (b) of the Madras General Sales Tax Art, 1939, (hereinafter referred to as the Act) as it stood before the amendment by Madras Act XV of 1956. There were three separate trials and there are three appeals but, the question involved being the same the appeals have been heard together and can be disposed of by a common judgment.

(2.) In the case of Criminal Appeal 39 of 1957, the assessment is for the year 1950-51 and the tax remaining unpaid is Rs. 5278-3-0; in Criminal Appeals 2 of 1957, for the year 1951-52, Rs. 1872-0-t; and in Criminal Appeal 3 of 1957 for the year 1952-53, Rs. 662-15-3.

(3.) That the amounts mentioned above are due in respect of assessments made by competent authority under the provisions of the Act (in two of the cases after the accused had challenged the assessment in appeal) was, and is, not disputed. The accused's defence was that the assessments were excessive, in the first case because no exemption was given in respect of sales outside the State; in the second case because no exemption was given in respect of inter State sales; and in the third because sales not affected by him were taken into account in determining his turnover. The learned Magistrate went into the merits of these contentions and, in each case throwing the burden on the prosecution to disprove them, held that the burden had not been discharged and that consequently the accused was entitled to an acquittal. Here there can be no doubt that he was wrong. The gist of an offence under S.45(b) is an assessment under the Act and the failure to pay, within the time allowed, any tax so assessed. Both these elements were proved and, in fact, admitted; on the wording of the section there was no scope for an enquiry as to the validity or the propriety of the assessment; and indeed S.16A of the Act precluded the magistrate from embarking on such enquiry. We are aware that in In re Guruviah Naidu & Co., AIR 1954 Mad. 833 , a Bench of the Madras High Court had held that S.16A of the Act is void as being repugnant to the provisions of the Constitution and the Criminal Procedure Code as also to the principles of natural justice. But, with great respect, we prefer to follow the Bench decision in V. M. Syed Mohamed & Co., v. The State of Madras AIR 1953 Mad. 105 where the validity of this provision was upheld, and the Full Bench decision in In re Velayudhan, P. K., 1955 KLT 399 which upheld the corresponding provision (S.21) of the T-C General Sales Tax Act, 1125, following the latter decision and differing from the former.