SAIDU MUHAMMED Vs. BHANUKUTTAN EXECUTIVE OFFICER CHAVARA PANCHAYAT

JUDGEMENT

(1.) The petitioner was assessed to profession tax under the provisions of the Travancore - Cochin Panchayats Act, 1950 for the four half years, 01/10/1953 to 03/09/1955. He was duly served with notices of demand. He met these notices with protests but not with payment and has not, to this day, paid the tax assessed. The Travancore - Cochin Panchayats Act provided for the recovery of arrears of tax by resort to the Revenue Recovery Act it did not provide any other mode of recovery, and, in particular, did not make non payment an offence but, whether any steps were taken for such recovery we have not been told, and, if they were, it is clear that they must have ended in failure. The Travancore - Cochin Panchayats Act was repealed on 01/01/1962 by S.151 of the Kerala Panchayats Act, 1960 for short, the Act. However, Clause.8(2) of the transitional provisions in schedule V of the Act says:

(2.) An offence, the General Clauses Act, S.3(38), tells us is "any act or omission made punishable by any law for the time being in force." And what Art.20(1) of the Constitution says is:

(3.) The prosecution in Paul v. Karthiyani, 1967 KLT 27 was not for wilful omission to pay tax but for wilful prevention of distraint which also is an offence under R.26 of the Rules read with S.74 of the Act The prevention in that case was after both the section and the rule had come into force although the arrears of tax had accrued due earlier under the provisions of the Travancore - Cochin Panchayats Act. Hence no question of the application of Art.20(1) of the Constitution arose in that case the act charged as an offence was committed after the law which made it an offence had come into force. But the defence was nevertheless taken, and, in passing, their Lordships observed "the gravamen of the offence charged against the accused is the continued default in payment of the tax leading to distraint proceedings and the impracticability of distraint and / or wilfully preventing such distraint." The rejection of the defence was however based on the definite finding that the wilful prevention of the distraint took place long after the provisions of law making such prevention an offence came into force.