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TMI Blog1967 (9) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... lers registered under the Act carrying on business in art silk, cotton and handloom cloth. During the period January 26, 1950 to March 31, 1950, the appellants effected various sales outside the State of Bombay. As those sales were protected by Article 286(1)(a) of the Constitution, they were outside the reach of the Act. But yet the Sales Tax Officer assessed the turnover relating to those sales. The tax levied in respect of that turnover was Rs. 4,494-3-9. In appeal, the order of the Sales Tax Officer was affirmed by the Assistant Collector of Sales Tax. But the Additional Collector of Sales Tax, in revision, revised the levy to some extent and ordered a refund of Rs. 2,238-0-6. That amount was paid to the assessees. Not being satisfied with the order of the Additional Collector of Sales Tax, the appellants took up the matter in revision to the Sales Tax Appellate Tribunal. But even before they moved the Tribunal in revision, the Additional Collector of Sales Tax by his letter dated May 17, 1958, informed the appellants that unless they furnished to the Sales Tax Officer proof of their having refunded the amount paid to them in pursuance of his order to the purchasers within a pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst them under section 12A(4). The High Court dismissed that application. Hence, this appeal. The Act provides for the levy of tax on the sale of goods in the then State of Bombay. It came into force on March 8, 1946. Any person who carries on business of selling or supplying goods in the State of Bombay whether for commission, remuneration or otherwise, is defined as a "dealer" in section 2(c). Section 8 and section 8A of the Act provide for the registration of dealers. As mentioned earlier the appellants are registered dealers. Under section 2(k) of the Act, the assessment year is the financial year. Section 5 prescribes the incidence of taxation. Section 10 prescribes the returns to be made by the dealers. The assessment is made under section 11. Section 11A provides for taxing the turnover escaping assessment. Section 12 provides for the payment and recovery of tax. Section 12A is the one with which we are concerned in this appeal. It reads: "(1) No person shall collect any amount by way of tax under this Act in respect of sales or supplies of any goods which are declared, from time to time, under section 7 as sales or supplies on which the tax is not payable. (2) No pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded nor could it have been contended that the impugned provision is a taxation measure bringing to tax directly or indirectly the sales effected outside the State of Bombay. In Abdul Quadar and Co. v. Sales Tax Officer, Hyderabad [1964] 6 S.C.R. 867; 15 S.T.C. 403., interpreting section 11(2) of the Hyderabad General Sales Tax Act, 1950, a provision somewhat similar to the impugned provision, this Court observed that legislation under entry 54 of List II of the Constitution (similar to entry 48 of List II of the Government of India Act, 1935, the entry with which we are concerned in this case) proceeds on the basis that the amount concerned is not a tax exigible under the law made under that entry, but even so lays down that though it is not exigible under the law, it shall be paid over to the Government merely because some dealers by mistake or otherwise have collected it as tax; hence, it is difficult to see how such a provision can be ancillary or incidental to the collection of tax legitimately due under a law made under the relevant taxing entry. Therein it was held that it cannot be said that the State Legislature was directly legislating for the imposition of sales or purcha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the question as to whether there has been a contravention of section 12A(1) and (2), and if so, to what extent. Hence it would be open to the department to evolve all the requisite machinery and procedure which means that the whole thing, from the beginning to end, is treated as of a purely administrative character, completely ignoring the legal position. The imposition of a penalty on a person is at least of a quasi- judicial character. The impugned provision does not concern itself only with the amount admittedly collected by a person in contravention of sub-sections (1) and (2) of section 12A. Even if there is any dispute either as to the factum of collection or as to the amount collected, such a case also comes within the scope of section 12A(4). Yet that section does not provide for any enquiry on disputed questions of fact or law. The forfeiture provided for in section 12A(4) prima facie infringes Article 19(1)(f). Therefore it is for the respondents to satisfy the Court that the impugned provision is a reasonable restriction imposed in the interest of the general public. Section 12A(4) does not contemplate the making of any order. As mentioned earlier, that section prescr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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