9911796707
TMI Blog1960 (2) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of the Madras Act VI of 1939. The present petitioner filed W.P. No. 215 of 1957 for the issue of a writ of mandamus directing the State Government and other appropriate authorities from giving effect to the provisions of Act V of 1958. Various contentions were raised in that petition, assailing the constitutionality and validity of that Act. By a judgment dated 5th November, 1958, my Lord the Chief Justice and Srinivasachari, J., dismissed with costs the W.P. No. 215 of 1957 and other similar petitions.* Thereupon, the Commercial Tax Officer, First Circle, and the Commercial Tax Officer, Third Circle of Hyderabad, issued to the petitioner two notices with respect to two petrol selling shops owned by him, viz., "City Petrol Service" and the "Dominion Petrol Service". In the notice given by the 3rd respondent the petitioner was told to file returns and pay the tax due under the Hyderabad Sales of Motor Spirit Taxation Regulation on or before 13th November, 1958, for the period commencing from April, 1957, to March, 1958, failing which assessment would be completed to the best judgment of the officer in conformity with section 8(1) of the Regulation. In the notice given by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by or under the principal Act extended by this Act, as if that Act were in force in the transferred territories on the date on which such thing was done or action was taken; and all arrears of tax due at the commencement of this Act may be recovered as if they had accrued under the principal Act extended by this Act. (2) Notwithstanding anything contained in sub-section (1) (a) any person who has been registered as an importer, a wholesale dealer or a retail dealer under the said Act, shall get himself registered under the principal Act extended by this Act; (b) any proceeding commenced under the said Act and pending at the commencement of this Act before any officer or authority shall, after such commencement, be transferred to and disposed of by the officer or authority who would have had jurisdiction to dispose of it under the principal Act extended by this Act, if it had been in force in the transferred territories on the date on which the proceeding was commenced." The argument that was pressed upon me is that what is saved by the repeal enacted under sub-section (1) of section 13 is an obligation or liability already incurred under Regulation XXIV of 1358 F. A mere li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the liability under a fiscal enactment does not spring from the assessment. The liability arises from what is called the charging provision. In a passage which has since become a classic, Lord Dunedin in his speech in Whitney v. Commissioners of Indand Revenue[1926] A.C. 37 at 52. has observed thus: "Now, there are three stages in the imposition of a tax: there is the declaration of liability, that is the part of the statute which determines what persons in respect of what property are liable. Next, there is the assessment. Liability does not depend on assessment. That, exhypothesi, has already been fixed. But assessment particularises the exact sum which a person liable has to pay. Lastly, come the methods of recovery, if the person taxed does not voluntarily pay." In Chatturam, and Others v. Commissioner of Income-tax, Bihar[1947] 15 I.T.R. 302; A.I.R. 1947 F.C. 32., the Federal Court of India in construing the provisions of the Income-tax Act, held that the liability to pay tax is founded on sections 3 and 4 of the Income-tax Act, which are the charging sections, and that section 22 and the sections that follow are the machinery sections for the purpose of quantification of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es laid down in section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject the Court would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities, but whether it manifests an intention to destroy them. The Court cannot therefore subscribe to the broad proposition that section 6 of the General Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law." Substantially the same view has been taken in the case of Indira Sohanlal v. Custodian of Evacuee Property, De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Sales Tax Act an assessee has not to pay tax in respect of the income for the previous year. He pays tax in respect of the chargeable accounting year itself. In the second place, there is no notice which has to be served upon an assessee to file his return. The statute itself constitutes a notice which renders every registered dealer liable to make a return. The third distinction is that with the return an assessee has to pay into the Government treasury the full amount of tax due from him under the Act according to the return that he has made. Therefore, under the Income-tax Act assessment proceedings are initiated by a notice, then follows a return, on the return an assessment order is passed, and after the assessment order is passed the assessee has to pay the tax. Under the Sales Tax Act the return is made obligatory under the Act itself and even the payment of tax according to the return is made obligatory. Therefore, the assessee has not to wait till the assessment order is passed before he becomes liable to pay tax." It is unnecessary to refer to some of the decisions cited by the learned counsel Mr. Dhanurbhandu for the petitioner, which, to my mind, have no direct beari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rincipally on two grounds: (1) that no duty can be assessed or collected in the absence of a return made by him and (2) that the Act did not provide for the collection of the arrears. Both these contentions were rejected by the trial Court and, in appeal, the learned judges took the same view. Curgenven, J., observed thus:
"It may be that collection and assessment of the duty was fixed upon a monthly basis in the interests of the assessee as well as of the revenue, but if the return which was to form the initial steps in such a procedure is withheld, it would be unreasonable to insist that it is still incumbent upon the revenue department either to assess the duty month by month or to forego their revenue altogether. Where there is a liability and no express provision limiting its realization, it is to be inferred that it may be realized at any time after it arises." There is, therefore, absolutely no merit in this petition. The petitioner has sought unavailingly to impeach the vires of Act V of 1958, and when he failed, he has filed this petition wholly on unsubstantial grounds. The petition fails and is dismissed with costs. Advocate's fee Rs. 200.
Petition dismissed. X X X X Extracts X X X X X X X X Extracts X X X X
|
