TMI Blog1951 (2) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... Town, issued a notice on 26th February, 1949, under Rule 9 of the Madras General Sales Tax (Turnover and Assessment) Rules to the company pointing out that the entire sale price of the sheets should be included in the turnover, the company agreed to have that amount also included in the turnover. They explained the basis of their return in the following manner. They had received from their customers ingots for converting them into sheets. The ingots supplied to them were partly from goods purchased from them and partly from goods pur- chased outside. Under pressure of heavy work and strike at their works, they could not convert those ingots into sheets and supply them promptly. The customers began to threaten them for damages for late delivery. Pursuant to an arrangement entered into between them, they purchased the then available 4' by 4' sheets from the market and supplied them to their customers. As the ingots were the property of the customers and as they had to get only the manufacturing charges according to the contract, they billed them only for the manufacturing charges in conformity with the terms of the contract. As they had already billed for the value of the ingots and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y dealer whose turnover is ten thousand rupees or more in a year shall submit such return or returns of his turnover, in such manner, and within such periods as may be prescribed. 2(a)-If the assessing authority is satisfied that any return sub- mitted under sub-section (1) is correct and complete, he shall assess the dealer on the basis thereof. (b)-If no return is submitted by the dealer under sub-section (1) before the date prescribed or specified in that behalf or if the return submitted by him appears to the assessing authority to be incorrect or incomplete, the assessing authority shall assess him to the best of his judgment. Provided that before taking action under this clause, the dealer shall be given a reasonable opportunity of proving the correctness and complete- ness of any return submitted by him. Section 15-Any person who, (a) wilfully submits an untrue return or fails to submit a return as required by the provisions of this Act or the rules made thereunder, shall, on conviction by a Presidency Magistrate or a Magistrate of the first class, be liable to a fine which may extend to one thousand rupees." Rule 4(1) of the Madras General Sales Tax (Turnover and Assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not wilful unless persisted in after the attention of the vendor has been called to it." In Reg v. Senior(5), Lord Russell of Killowen, C.J., in a different context, explains 'wilfully' to mean, "that the acts if done deliberately and intentionally not by accident or inadvertence, but so that the mind of the person who does the acts goes with it". The meaning of the word was also considered in various decisions in connection with wilful misconduct, wilful default, wilful neglect occurring in different statutes. In In re Young and Harston's Contract(4) Bowen, L.J., explained the word "wilful" which has been accepted and applied in subsequent cases, as follows: "It (i.e., the word 'wilful') generally, as used in Courts of law, implies nothing blameable, but merely that the person of whose action or default the expression is used, is a free agent, and that what has been (1) [1875] Exch. D.1, p.419. (4) (1885) 31 Ch. D. 168. (2) (1906) Ir. Rep. 1, p.287. (5) (1899) 1 Q.B. 283. (3) [1903] 1. Ch. 509. done arises from the spontaneous action of his will. It amounts to nothing more than this, that he knows what he is doing and intends to do what he is doing, and is a free agent." In In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31 Ch. D. 168. definition of wilful misconduct given by Lord Alverstone in Forder v. Great Western Ry. Co.(1) Coming to the Indian decisions, in East Indian Railway Co. v. Ahmed Ali Mohammad(2), the question was whether a railway company was guilty of wilful neglect. The learned Judge says that the term "wilful neglect" implies an intentional and purposeful omission to do a certain act and it is an even more extreme term than "gross and culpable negli- gence" implying that an individual deliberately refrained with his eyes open from doing an act or taking a step which it is his duty to take. The Judicial Committee in Tamboli v. The G.I.P. Railway Co.(3) had to consider the meaning of the words "wilful neglect" in connection with the omission by a railway administration to provide efficient means for extinguishing a fire. They held that the words meant that the act was done deliberately and intentionally and not by accident or inadvertence, but so that the mind of the person who does the act goes with it. Govinda Menon, J., in Jayarama Chettiar v. Emperor(4) had occasion to deal with the meaning of the words "wilful submission " in Section 15 (a) of the General Sales Tax Act. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ul acts or defaults occurring in Article 118 of the Company's Articles of Association which dealt with the conduct of the company's business. The article provided that the officers of the company would be entitled to an indemnity out of the funds of the company except in regard to their own wilful acts or defaults. After noticing the various English decisions cited before. them, the learned Judges summarised their view in the following words: "The adjective 'wilful' in 'wilful acts or defaults' has evidently been used as a description and not as a definition. The idea intended to be conveyed is that the default is occasioned by the exercise of volition or as the result of the non-exercise of will due to supine indifference, although the defaulter knew or was in a position to know that loss or harm was likely to result. The word does not necessarily suggest the idea of moral turpitude. We have also to eliminate the elements of accident or inadvertence or honest error of judgment. The default must be the result of deliberation or intent or be the conse- quence of reckless omission. 'Wilful default' therefore is indicative of some misconduct in the transaction of business or in the di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view this construction which leads to startling results should not be accepted unless the words in the statute are clear and unam- biguous. Not only I do not see any such words but to my mind the word wilful used in the section was intended only to hit at intentional omissions of an assessee with full knowledge that the item omitted is a taxable one. In the present case, on the facts admitted and found it is obvious that the assessee bona fide believed that his act of accommodation to his customers in keeping up to the terms of the contract entered into with them would not change the real nature of the transaction. If he was able to convert the ingots entrusted to him into brass sheets he would have got exemption in regard to his manufacturing charges. Indeed, as the evidence discloses, and as the accounts show, he later on sold away the ingots entrusted to him after converting them into sheets paying sales tax. He might have been wrong in the view but I cannot say that he omitted the item deliberately with the idea of evading tax. The fact that immediately it was pointed out to him he was ready to make good the defect, is really indicative of his bona fides. I therefore hold on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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