PUBLIC PROSECUTOR Vs. SARISETTY VENKATASUBBIAH

JUDGEMENT

(1.) THIS is an appeal preferred by the State against the order the of acquittal of the respondent by the learned Sub-Divisional Magistrate, Gudur, in C.C. No. 45 of 1951. The facts are :- The respondent is a dealer in chillies in Sulurpet taluk. He was assessed to sales tax by the Deputy Commercial Tax Officer for the year 1948-49, that is to say, for the transactions from 1st April, 1948, to 31st March, 1949, on a turnover of over Rs. 30, 515-5-1. Exhibit P-1 is the assessment order. Exhibit P-2 is the demand notice served on the respondent on 10th February, 1950. Exhibit P-3 is the return in Form A submitted by the respondent. The respondent-accused not having paid the assessment as per the demand has been charge-sheeted for an offence under Section 15(b) of the Madras General Sales Tax Act, 1939. On these facts being affirmatively proved by the prosecution the accused-respondent stated that he was never a dealer purchasing and selling chillies, that he had no business of his own and that he was doing the business on behalf of the ryots and that he did not commit any offence as charged.

(2.) THE learned Sub-Divisional Magistrate in this particular case, and this is not the first instance of this kind, has taken upon himself the supererogatory task of deciding that the observations of the Appellate Commercial Tax Authority are binding on the Deputy Commercial Tax Officer whereas these observations are absolutely irrelevant in a prosecution for non-payment of tax and with which alone the Sub-Divisional Magistrate was concerned. In order to get over Section 16-A the accused alleged that he was not a dealer but a commission agent and the Sub-Divisional Magistrate came to the conclusion that the accused is not therefore a dealer and that he is not liable to pay the tax and so he cannot be prosecuted. In coming to this conclusion he committed an error because it has been held by a Full Bench of this Court in Radhakrishna Rao v. Province of Madras that the term "dealer" will take in a commission agent also as in the instant case.THErefore, the Court below ought to have found that the accused is as assessee falling within the scope of the Act and that he is liable to pay the tax.