GIGINA PASHA SAHEB Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) The only three points for determination in this case are whether in a prosecution under Section 15(b), Madras General Sales Tax Act, the validity of the assessment can be questioned by a party or gone into by a criminal Court in any prosecution or other proceeding before it, (1) where the turnover on which the person is assessed relates wholly to the period before 1st January 1948 and the assessment is made before 1st January 1948 but the prosecution is instituted after 1st January 1948 when the new Section 16A came into force; (2) when the assessment is made after 1st January 1948, as in this case, but a portion of the turnover on which the assessment is based relates to the period before 1st January 1948; and (3) where the turnover, assessment and prosecution are all after 1st January 1948.

(2.) I shall take the last case first. I agree with the learned Public Prosecutor that, as Section 16A stands, the validity (including therein both the legality and the quatum) of the assessment cannot be questioned in any criminal Court by a party, or even gone into by the Court itself, in any prosecution or proceeding, if the assessment, turnover and the prosecution are all after 1st January 1948. I am not impress-ed with the argument of Mr. Gopalaswami Aiyangar, for the petitioner, that Section 16A is a penal and fiscal enactment, and that the liberty and property of the subjects ought not to be en-dangered in a criminal case by such reckless provisions like Section 16A, which are, according to him, ultra vires. He urged vehemently that accused persons will be bound hand and foot and handed over to the criminal Courts, like sacrificial sheep, to be automatically sentenced, if the learned Public Prosecutor's argument is accepted. I cannot agree. Whatever the reasonableness or otherwise of a provision like the new Section 16A, I am satisfied that it is well within the powers of the Legislature and is not ultra vires. Nor does Mr. Gopalaswami Aiyangar's appeal to the liberties given to an accused, under the Criminal Procedure Code, at a trial, impress me. The Criminal Procedure Code, of course, says nothing regarding the quantum or quality of proof of the validity of the assessments in cases under the General Sales Tax Act, as, when it was framed, this Act was unknown and un-contemplated. It requires the prosecution, no doubt, to prove its case. But Section 16A makes an assessment on a turnover after 1st January 1948 itself conclusive proof that such assessment is valid, something like the conclusive presumption regarding the legitimacy of children born in wedlock under Section 112, Evidence Act, when there is access. The usual rule of interpretation in such cases is that a special law regulating a special thing will take precedence over the general provisions of common or statute law, unless the special law is itself invalid, or ultra vires. General and roaming arguments based on general principles, like penal provision and fiscal provision, cannot be of much weight when the Legislature, after a full discussion, has passed an enactment like Section 16A affecting the property of the subject and his liberty also in case he defaults. So, before an enactment of the Legislature, like Section 16A, is held to be ultra vires there must be full proof that it is really ultra vires, Merely stating that a subject is deprived of a part of his wealth, and is also liable to imprisonment in case he defaults in the payment of tax will not do. All taxes have these unpleasant consequences. It is also not as if the subject is left remediless. Generally, the assessment of sales tax is made by the Assistant or Deputy Commercial Tax Officer, and an appeal is provided for to the commercial tax officer, and, later on, a revision to the Board of Revenue, which is a final Court in some revenue and other cases, and which consists of persons of great experience and well acquainted with oases and laws. In several countries, like France, there are administrative Courts, like the Board of Revenue in this case, whose decision is final in Borne matters. That cannot be, therefore, taken as a grievance, or as a proof of the ultra vires nature of Section 16A. Of course, if the contemplated sales tax tribunal fructufies, it may be a better Court for hearing and determining appeals, as it will consist only of judicial officers; but that cannot be any reason for holding that the present procedure of appeal and revision is rotten or invalid or that Section 16 A is ultra vires. I have not been shown any valid reason, much less a ruling of any High Court, holding Section 16A to be ultra vires. I hold that it is not ultra vires.

(3.) The next question is whether Section 16 A will apply to cases of assessmet made before 1st January 1948 or to assessments made after 1st January 1948 regarding the portion of the turnover before 1st January 1948 on which the assessment is based. Here, we are in a different terrain. Before 1st January 1948, any person prosecuted under Section 15 (b), for not paying the gales tax assessed, could show that the assessment was not valid, both regarding its legality as well as its quantum. I cannot agree with Mr. Gopalaswami Aiyangar's argument that the word "valid" even in the present Section 16A, covers only the legality of the assessment, and not its quantum. "Valid" means what it implies, namely, that it is not invalid in any portion of it, either in quality or in quantity. It is often the case, for instance, that a promissory note is held to be valid and binding, say, on a minor, regarding a portion of the consideration, and not valid and binding regarding the other portion. If the promissory note debt were held to be wholly valid, the minor would be bound wholly by the debt. It cannot be that Section 16A contemplates only the validity regarding the legality, and leaves the whole question of quantum, even regarding the turnover and assessment after 1st January 1948, open. The object of enacting Section 16A seems to me to be to allow no liberty to question the legality or the quantum of the assessment to an accused when prosecuted for non payment in a criminal Court and to leave him only to his remedies by way of appeal to the Commercial Tax Officer and revision to the Board of Revenue, and possibly also a misericordia domini regis (mercy) petition to the Government in the last resort, and not to agitate its validity regarding the legality or quantum in the criminal Court when being prosecuted there for default.