TMI Blog1949 (11) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... nuary, 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. 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 quantum) of the assessment cannot be ques- tioned 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 impressed with the argument of Mr. Gopalaswami Aiyangar, for the petitioner, that Section 16A is a penal and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 conse- quences. It is also not as if the subject i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 16-A contem- plates only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... April, 1947, to 31st December, 1947, at Rs. 32,633, but in appeal, the Commercial Tax Officer reduced that to Rs. 30,000, on what basis it is not quite clear; perhaps it was only a case of "round- ing off", as urged by the petitioner's counsel on rough and ready sarasari principles. That being so, it is obvious that there is some scope for this petitioner to argue that the assessment imposed on him for the period between 1st April, 1947, and 1st January, 1948, is not correct and that he is able to prove that the turnover during that period was considerably less and that only a proportionately lesser tax could have been imposed on him for that period. In my opinion, the date of the assessment is not very material, when considering this ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cution or other proceedings instituted after 1st January, 1948, when it came in- to force, and that it is only the dates when the default to Pay the tax occurred and the prosecution is instituted that are material. He contends that if the default occurred and if the prosecution is instituted after 1st January, 1948, as in this case, it is immaterial whether the turnover on which the assessment is based relates wholly or partly to the period before 1st January, 1948, and that the accused, in such a case, cannot question the validity of the assessment or invite the Court to go into it and that the Court also cannot go into it suo motu. I cannot accept this argument which will leave a powerful weapon in the hands of some people who may institu ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
