GURMUKHDAS SALAMATRAI Vs. STATE OF BOMBAY

JUDGEMENT

(1.) THE appellant in this case was a registered dealer having his place of business at Kolhapur. He was registered as such on 28th September, 1949. On 14th December, 1949, he informed the Sales Tax Officer at Kolhapur that he had closed the shop. THE Collector of Sales Tax was informed that the appellant was not originally the sole proprietor of the shop as he sought to make out in his application (Form No. II) dated 18th May, 1949, and that there were three more partners in it. He was further informed that the shop was not really closed on 6th December, 1949, but that it was continued by one of the four partners Pribhdas Motiram. He considered that by doing so he had committed offences under Section 24(1), clauses (g) and (i), of the Bombay Sales Tax Act. Instead, however, of prosecuting the appellant he was willing to take action under Section 26 of the Act. He therefore wrote to the appellant by his letter dated 9th December, 1950, that he would not be prosecuted if he paid Rs. 250 by way of composition. THE appellant has come up in appeal against this.

(2.) THE primary question in the case is whether there is an appealable order so as to entitle the appellant to file an appeal under Section 21 of the Bombay Sales Tax Act. That section requires that there should be an order before an appeal can be filed; and the question which we have to consider is whether the letter of the Collector of Sales Tax referred to above amounts to an order. An order evidently means a directive which will compel a party to do a certain thing. THE letter does not issue any. It merely makes an offer to the appellant that he should pay Rs. 250 by way of composition if he wanted to avoid the consequences of a prosecution. THE letter does not even say that the appellant would be prosecuted on his failure to pay up the amount. It merely says that necessary steps will be taken for the offences committed. As we have already said the letter merely amounts to an offer to drop criminal proceedings in case the amount was paid. We cannot construe it as an order appealable under Section 21 of the Act. If the Collector sanctions the prosecution of the appellant there would be an order under Section 24(2) of the Act and an appeal can lie to this Tribunal against it. THE Sales Tax Officer who appears for the respondent is not prepared to accept this view, but reading the pertinent provision of the Act, we think that is the position. If the appellant so wants he can decline the Collector's offer. He (the Collector) will then have to pass an order under Section 24(2) sanctioning the prosecution and then the appellant can appeal to this Tribunal, if so advised.