TMI Blog2008 (8) TMI 816X X X X Extracts X X X X X X X X Extracts X X X X ..... n 14B(7)(ii) and (iii) of the Punjab General Sales Tax Act, 1948 providing that proceedings shall be decided within a period of 14 days from the commencement of enquiry proceedings are directory or mandatory . The relevant facts to determine the above said legal question are being taken from CWP No. 14885 of 2004. The petitioner is a firm registered under the Punjab General Sales Tax Act, 1948 (for short, the State Act ) and the Central Sales Tax Act, 1956 (hereinafter to be referred as, the Central Act ). The petitioner dispatched mill parts to Pondy Technologists Limited on June 5, 2003 in truck No. NL01A-6467 on June 5, 2003 accompanied by valid bill and goods receipt. However, such consignment was detained by the Incharge, Information Collection Centre. The order of detention of goods and vehicle was passed on June 5, 2003. The petitioner submitted his written explanation and documents on June 9, 2003. However, no final decision was taken by the competent authority. The goods were released against surety bonds and proceedings were sent to the Assistant Excise and Taxation Commissioner on July 7, 2003 for taking action under section 14B(7)(ii) of the State Act. The p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , given by the consignor or consignee of the goods or his representative or the driver or other person in-charge of the goods vehicle so as to prove the genuineness of the transaction within a period of 72 hours of the detention. The said officer shall immediately thereafter submit the proceedings along with the concerned records to such officer, as may be authorised in that behalf by the State Government for conducting necessary enquiry in the matter. The officer authorised by the State Government is required to serve a notice on the consignor or the consignee of the goods detained and after giving an opportunity of being heard, pass an order of penalty and release of the goods and the vehicle. Such order is required to be passed after recording reasons and within a period of 14 days of commencement of the enquiry proceedings. The relevant extract from section 14B of the State Act reads as under: Section 14B. Establishment of check-post or information collection centres and inspection of goods in transit. (1) to (6)... (7)(i) The officer detaining the goods under sub-section (6), shall record the statement, if any, given by the consignor or consignee of the goods or his rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposable and shall decide the matter finally within a period of fourteen days from the commencement of the enquiry proceedings; and (iv)... (8) to (11)... Learned counsel for the petitioner has vehemently argued that the provisions of section 14B(7)(ii) and (iii) of the State Act were amended after directions were issued by this court providing time-limit for completion of enquiry proceedings, therefore, failure to decide within the time prescribed will result into abatement of the proceedings. After the period prescribed, the penalty cannot be imposed. It is contended that such provisions are mandatory in nature. No order of penalty or forfeiture of goods can be passed after the expiry of prescribed period under section 14B(7)(ii) and (iii) of the State Act. Learned counsel for the petitioner relied upon the judgment of this court reported as State of Haryana v. Rajeshwar Parshad [1978] 42 STC 196 and single Bench judgment of this court reported as Hardit Singh Bhagat Singh v. Excise and Taxation Officer, Assessing Authority, Ludhiana [1982] 49 STC 56 and of the Calcutta High Court in State of West Bengal v. Sarda Sons [1977] 40 STC 419. On the other hand, learned St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t retrospective. Such argument was accepted by holding that the substituted section 11 created a substantive right in favour of an assessee to get his assessment finalised within the time prescribed. No argument was raised or examined that the time-limit of three years for completion of assessment is mandatory or directory. Since the issue raised was only in respect of retrospectivity of the amending Act, the said judgment is not relating to the questions raised in the present petition. In Madan Lal Arora's case [1961] 12 STC 387, again the question raised was whether the power to make best judgment assessment can be exercised only within three years. The honourable Supreme Court held that section 11(4) deals with the case of a dealer who has furnished returns in respect of a period and thereafter has been asked to produce evidence to support the returns but has failed to do so. It was held that the reason for such provision is that the correctness of the returns has been doubted by the assessing authority, but the dealer has not availed himself of the opportunity afforded to him to remove the doubts. The sub-section provides that the power can be exercised within three y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upreme Court in State of U.P. v. Manbodhan Lal Srivastava AIR 1957 SC 912, has quoted the following quotation from Crawford on Statutory Construction : The question as to whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other . . . It was held that consultation of the Public Service Commission affecting a person serving the Government of India or a State Government are not mandatory in spite of the use of words shall therein. In Banwarilal Agarwalla v. State of Bihar AIR 1961 SC 849, a Constitution Bench of the Supreme Court held that no general rule can be laid down for deciding whether any particular provision in a statute is mandatory, meaning thereby that non-observance thereof involves the consequence of invalidity or only directory, i.e., a direction the non-observance of which does not entail the consequenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ays would not render the award invalid. Non-publication of award within a period of 30 days does not entail any penalty and, therefore, the provision as to time in section 17(1) is merely directory. In Topline Shoes Ltd.'s case [2002] 6 SCC 33, the Supreme Court negatived the argument raised that the State Commission constituted under the Consumer Protection Act, 1986 has no power to accept a reply filed beyond a total period of 45 days. It was held that such provision is not mandatory in nature. No penal consequences are prescribed and the period of extension of time not exceeding 15 days , does not prescribe any kind of period of limitation. The provision is directory in nature. The provision is more by way of procedure to achieve the object of speedy disposal of such disputes. It is an expression of desirability in strong terms. But it falls short of creating any kind of substantive right in favour of the complainant reason of which the respondent may be debarred from placing his version in defence in any circumstances whatsoever. In V.K. Verma's case [1993] 2 PLR 762, this court was examining an argument raised on the basis of section 33(5) of the Industrial Disp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued by the competent authority in relation to an application filed for inclusion of a voter's name, a nomination can be filed. The person concerned, therefore, would not be inconvenienced or in any way be prejudiced only because the revised electoral roll in form 16 is published a few hours later. The result of filing of such nomination would become known to the parties concerned also after 3.00 p. m. 48.. Furthermore, even if the statute specifies a time for publication of the electoral roll, the same by itself could not have been held to be mandatory. Such a provision would be directory in nature. It is a wellsettled principle of law that where a statutory functionary is asked to perform a statutory duty within the time prescribed therefor, the same would be directory and not mandatory. (See Shiveshwar Prasad Sinha v. District Magistrate of Monghyr AIR [1966] Patna 144, Nomita Chowdhury v. State of West Bengal [1999] 2 Cal LJ 21 and Garbari Union Coop. Agricultural Credit Society Ltd. v. Swapan Kumar Jana [1997] 1 CHN 189). 49.. Furthermore, a provision in a statute which is procedural in nature although employs the word 'shall' may not be held to be mandato ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed.' In view of the above discussion, we hold that failure of the Tribunal to decide an application made under section 254(2) of the Act within four years did not denude it of the jurisdiction to decide the application on merits. Keeping in view the various judgments referred to above, it needs to be examined whether the time-limit of 14 days contemplated for the officer to complete the quasi-judicial proceedings can be said to be mandatory. Section 14B(6) of the State Act contemplates for release of the goods and vehicle within 72 hours. The said provision has been enacted so as not to hinder the movement of the goods and the vehicle even if there is allegation of evasion of tax. Once there is a provision for release of the goods and the vehicle, the conclusion of enquiry proceedings within 15 days is to impose a duty on the enquiry officer to complete the proceedings expeditiously but it does not follow that any departure from it shall taint the proceedings with fatal blemish. The provision is more by way of procedure to achieve the object of speedy disposal of such disputes. It is an expression of desirability in strong terms. But it falls short of creating any k ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
