TMI Blog1971 (8) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... ar 1956-57. The amount of tax assessed is Rs. 18,46,966.79. It had paid a sum of Rs. 6,96,000 and odd. This left an outstanding of Rs. 11,65,900.55. It filed a writ petition against the order of assessment in this court. The petition challenged the notification of the State Government imposing sales tax on the sale of cloth and yarn at the rate of one anna per rupee. The petition was admitted. The court granted an interim order that no amount in excess of three pies per rupee (the rate admitted by the assessee) should be realised from the assessee during the pendency of the writ petition. The amount already paid by the assessee exceeded the amount which could be realised in accordance with the interim order. So nothing really was to be paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment. Time was allowed up to 29th September, 1961. Time expired but no payment was made. Thereafter, after obtaining sanction of the Commissioner, Sales Tax, the Sales Tax Officer imposed a penalty of Rs. 1,16,590. The order imposing penalty was made on 6th January, 1962. One more fact is material. It is admitted by the assessee that it had recovered tax from the purchasers at the rate of one anna per rupee. The assessee further said that the entire amount which it had recovered from the purchasers was utilised by it in its own business during the pendency of the writ petition. It may be noted that the question referred to us is a composite question. The first part of it requires us to answer the point whether the notice of demand sent du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lised the liability of the assessee for the time being subject, of course, to any decision of this court. A writ proceeding is not in the nature of an appeal or a revision. It is a proceeding independent of the sales tax proceeding. The pendency of a writ petition does not wipe out the assessment order. It exists and the assessed amount remains a liability, definite and certain. It is now to be seen whether the time specified in the notice of demand dated 8th March, 1961, is uncertain. The notice directed the assessee to pay the amount. It also stated that in view of the interim order of the court in the writ petition filed by the assessee, the recovery of demand would remain stayed till the disposal of the writ petition and that the paym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of all the facts and circumstances touching the premises to which it refers: but what it would mean to the tenant presumably conversant with all those facts and circumstances; (3) it is to be construed not with a desire to find faults in it which would render it ineffective but to be construed ut res magis valeat quam pereat. In Doe d Hunlingtower v. CullifordA.I.R. 1918 P.C. 102. (, Bayley, J., said that the court should look to the intention of the landlord and that general and doubtful words in the notice should be so construed as to make it "sensible, not insensible". In Doe d Williams v. Smith[1836] 5 Ad. and E. 350., Littledale, J., said, "this is certainly a lame and inaccurate notice, but, as such as it is, we must endeavour to gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of tax. The plea is an afterthought invented with a view to escape from penalty. Counsel for the assessee submitted that as the proceeding under section 15-A is penal in nature, the burden of proof lies on the department. The construction of notice is a question of law, and not a question of fact. So the submission is not relevant. In the result we will answer the question referred to us in this manner: "The notice of demand sent along with the assessment order is a valid notice of demand; the letter dated 14/15th July, 1961, sent after the dismissal of the writ petition is a mere reminder and not a notice of demand as contemplated by the Sales Tax Act and the Rules made thereunder." The Commissioner, Sales Tax, shall get costs which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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