State of Kerala & Ors Vs. C. M.
Francis & Co [1960] INSC 290 (12 December 1960)
HIDAYATULLAH, M.
KAPUR, J.L.
SHAH, J.C.
CITATION: 1961 AIR 617 1961 SCR (3) 181
CITATOR INFO :
R 1961 SC 619 (28) RF 1967 SC 295 (60) RF
1979 SC1588 (14)
ACT:
Sales Tax-Recovery of-Remedies open to the
authorities-Code of Criminal Procedure, 1898 (V of 1898, s. 386(1)(b)-Travancore
Cochin General Sales Tax Act (XI Of 1125 Malayalam Era), ss. 13 and 19.
HEADNOTE:
The respondents were assessed to sales tax
under the Travancore Cochin General Sales Tax Act and proceedings were started
against them under s. 13 of the Act for the recovery of the arrears of Sales
Tax as if they were arrears of land revenue. The proceedings were not fruitful.
Thereafter a prosecution under s. 19 of the Act was instituted against the
partners who pleaded guilty and the magistrate issued warrants under s.
386(1)(b) of the Code of Criminal Procedure to the Collector of the District
for the recovery of the arrears of sales tax as if they were a fine imposed by
that court. The authorities again started proceedings under S. 13 of the Act
read with Travancore Cochin Revenue Recovery Act, 1951, and certain properties
were attached.
The respondents urged that in as much as they
were prosecuted under s. 19 of the Act and the magistrate had issued warrants,
the procedure for recovery under s. 13 of the Act was not available.
The question was whether s. 19 was to be
taken to prevail over s. 13 of the Act.
Held, that neither of the remedies for
recovery of arrears of tax as laid down by ss. 13 and 19 of the Travancore
Cochin General Sales Tax Act was destructive of each other and unless the
statute laid down in express words or by necessary implication that one remedy
was to the exclusion of the other, both the remedies were open to the
authorities and they could resort to any one of them at their option.
Shankar Sabai v. Din Dial, I.L.R. [1889] 12
All. 409 (F.B.), 418,approved.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 279 of 1959.
Appeal by special leave from the judgment and
order dated November 18, 1957, of the Kerala High Court in O. P. No. 87 of
1956.
A. V. Sayed Muhammad, for the appellants.
The respondents did not appear.
182 1960. December 12. The Judgment of the
Court was delivered by HIDAYATULLAH, J.-This is an appeal with the special
leave of this Court against the judgment of the High Court of Kerala dated
November 18, 1957, passed in a petition for writ of prohibition under Art. 226
of the Constitution. The State of Kerala and the Tahsildars of Kottayam and
Kanjirappally Taluks are the appellants, and C.M. Francis & Co., a
partnership firm, is the first respondent, and the partners of the firm are the
remaining respondents.
The respondents were doing business in hill
produce like pepper, ginger, betelnuts etc., and were assessed to sales tax
under the Travancore-Cochin General Sales Tax Act XI of 1125 (referred to as
the Act), for the years 1950 to 1954.
The respondents have to pay a sum of Rs.
1,01,716-4-3 as tax. In 1954, proceedings were started against them under s. 13
of the Act, which provides that if the tax is not paid as laid down in that
section, the whole of the amount or such part thereof as remains due, may be
recovered as if it were an arrears of land revenue. It appears that the proceedings
were not fruitful, and a prosecution under s. 19 of the Act was instituted
against the partners in the Court of the First Class Magistrate, Ponkunnam.
Respondents 2 to 5 pleaded guilty, and the Magistrate passed an order on
October 18, 1955 as follows:
"The sentence or other final order: A 1
to 4 sentenced to pay a fine of Rs. 50/each and in default to undergo S. 1. for
one month each. A 1 to 4 admit that they failed to pay on demand by the
competent authority, a sum of Rs. 1,01,716-4-3 due from them as sales tax for
the years 1950 to 1954. This amount will be realised from A 1 to 4, jointly or
severally, individually or collectively under the provisions of the Cr.P.C. for
realisation of criminal fines, as if it were a fine imposed by this court on
each accused individually and all of them together. Take steps for the
realisation." Warrants under s. 386 (1) (b) of the Code of Criminal
Procedure were issued to the Collector of Kottayam District for recovery of the
arrears of sales tax.
183 The authorities, however, started
proceedings again under s. 13 of the Act read with the provisions of the
Travancore Cochin Revenue Recovery Act, 1951 (VII of 1951), to recover the
amount as arrears of land revenue, and attached some properties belonging to
the respondents within the jurisdiction of the second and third appellants, the
Tahsildars of Kottayam and Kanjirappally Taluks. The firm thereupon filed the
petition under Art. 226 of the Constitution for a writ of prohibition or other
order or direction to the effect that the proceedings for realisation of the
arrears under the Revenue Recovery Act be quashed.
In the petition, the respondents urged that
inasmuch as they were prosecuted under s. 19 of the Act and the Magistrate had
issued warrants, the procedure for recovery under s. 13 was not available. They
contended that under s. 386 of the Code of Criminal Procedure the warrant is to
be deemed to be a decree and has to be executed according to civil process applicable
to the execution of decrees under the Code of Civil Procedure. They, therefore,
submitted that the procedure under s. 19 of the Act was no longer open, and
could not be proceeded with.
Section 19 of the Act, so far as it is
material, reads as follows:
"Any person who........................
(b) fails to pay within the time allowed, any
tax assessed on him under this Act, or (d)fraudulently evades the payment of
any tax assessed on him..........
shall on conviction by a Magistrate of the
first class, be liable to a fine which may extend to one thousand rupees and in
the case of a conviction under clause (b), (d) the Magistrate shall specify in
the order the tax which the person convicted has failed or evaded to pay and
the tax so specified shall be recoverable as if it were a fine under the Code
of Criminal Procedure for the time being in force." In dealing with the
question, the learned Judges of the High Court felt that s. 13 of the Act was
in the 184 nature of a general law, over which the special procedure prescribed
by s. 19 of the Act read with s. 386 of the Code of Criminal Procedure was to
prevail. They, however, thought that, since all the processes available under
s. 19 of the Act were also available under s. 386 of the Code of Criminal Procedure,
it was not necessary to decide what would happen if the proceedings under s.
386 came to nothing. They observed that if the question arose, they would
consider it. The writ of prohibition was granted by the High Court.
The respondents did not appear in this Court.
We have heard learned counsel for the appellants, who has drawn our attention
to all the relevant provisions of the law. The question which arises is whether
s. 19 must be taken to prevail over s. 13 of the Act. Both the sections lay down
the mode for recovery of arrears of tax, and, as has already been noticed by
the High Court, lead to the application of the process for recovery by
attachment and sale of movable and immovable properties, belonging to the
tax-evader. It cannot be said that one proceeding is more general than the
other, because there is much that is common between them, in so far as the mode
of recovery is concerned. Section 19, in addition to recovery of the amount,
gives the power to the Magistrate to convict and sentence the offender to fine
or in default of payment of fine, to imprisonment. In our opinion, neither of
the remedies for recovery is destructive of the other, because if two remedies
are open, both can be resorted to, at the option of the authorities recovering
the amount. It was observed by Mahmood, J. in Shankar Sahai v. Din Dial (1)
that where the law provides two or more remedies, there is no reason to think
that one debars the other and therefore both must be understood to remain open
to him, who claims a remedy. Unless the statute in express words or by
necessary implication laid down that one remedy was to the exclusion of the
other, the observations of Mahmood, J. quoted above must apply. In our opinion,
in the absence of any such provision in the (1) I.L.R. (1889) 12 All409 (F.B.),
418. 185 Act,, both the remedies were open to the authorities, and they could
resort to any one of them at their option.
The appeal is allowed, and the judgment of
the High Court set aside. Though the respondents did not appear, in the
circumstances of the case we think we should make an order that the costs shall
be paid by them both here and in the High Court.
Appeal allowed.
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