TMI Blog1963 (6) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... e Sales Tax Act, 1957 (hereinafter referred to as the Act), for the recovery of this amount as if it had been a fine imposed by the Magistrate. The Magistrate refused to take proceedings on the ground that the Commercial Tax Officer had assessed a wrong person and that respondent Venkoba Naik was not the person from whom the said tax was due. The Assistant Commercial Tax Officer preferred a revision petition to the District Magistrate who, being of the view that the MunsiffMagistrate should not have refused to recover the tax, has made the present reference. The respondent though served with a notice, has not appeared before us. Sri D.M. Chandrasekhar the learned Assistant AdvocateGeneral has appeared for the State. From what has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order the learned District Magistrate has not given the particulars of the previous references in which the High Court had directed the Magistrates to proceed with the recovery of tax under section 13(3)(b) of the Act. But the learned Assistant Advocate-General has brought to our notice two previous unreported decisions of this High Court, in which similar orders had been challenged in revision. Both these are decisions by single judges. One was Criminal Revision Case No. 30 of 1962 and the other was Criminal Revision Case No. 72 of 1961. The question whether a revision petition is maintainable against an order made by the Magistrate under section 13(3)(b) of the Act and whether it would be within the competence of the District Magistrate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect of the order passed by the Magistrate under section 13(3)(b) of the Act. While so rejecting, Narayana Pai, J., stated as follows: "However, the order passed by the Magistrate does not appear to be a judicial order at all. It can be rightly described only as an administrative or executive order. The consequence is that a revision petition under section 435 of the Code of Criminal Procedure was not maintainable." No other decision of this High Court has been brought to our notice, in which the question as to whether the powers under sections 435, 436, 438 and 439 of the Criminal Procedure Code could be exercised in respect of an order made by a Magistrate while acting under section 13(3)(b) of the Act was specifically raised for deter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng its revisional jurisdiction. Section 24 further provides for an appeal to the High Court by an assessee objecting to an order relating to assessment by the Commissioner suo motu under subsection (2) of section 21 of the Act. It would be manifest from these provisions that a party aggrieved by an order of assessment has full opportunity under the Act to challenge the validity and the extent of the tax assessed against him and the tax which he shall be finally liable to pay would be the tax as determined. It is then that section 13 of the Act is to be invoked for recovery of the tax. Sub-section (1) requires an assessee to pay the tax under the Act in such manner and in such instalments as may be specified in the notice of assessment. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be an order passed by an inferior Criminal Court under the Criminal Procedure Code. When no provision has been made in the Act for revision of such an order, sections 435, 436, 438 and 439 of the Criminal Procedure Code cannot be resorted to for interfering with that order. In a recent decision of the Supreme Court in Dargah Committee, Ajmer v. The State of RajasthanA.I.R.1962 S.C. 574.', the question that arose for determination was as to whether a Magistrate who entertained an application made under section 234 of the Ajmer-Merwara Municipalities Regulation (No. VI of 1925), was an inferior Criminal Court under section 439 of the Criminal Procedure Code. That section provided for the Municipal Committee making an application before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust be treated as a persona designate and not as a Magistrate functioning and exercising his authority under the Code of Criminal Procedure. He cannot therefore be regarded as an inferior Criminal Court. That is the view taken by the High Court and we see no reason to differ from it." The above statement of the Supreme Court would be equally applicable to a Magistrate functioning under section 13(3)(b) of the Act; he cannot be regarded either as an inferior Criminal Court or as functioning or exercising authority under the Code of Criminal Procedure. That being so, no revision to the District Magistrate was maintainable and the reference which has been made by him is incompetent. It is no doubt true that in a Division Bench decision in M.S. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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