text stringlengths 5 5.67k |
|---|
The appellant filed a writ petition in the High Court challenging the notices and asking for an order restraining the respondents from taking steps under the notices and making assessments or levying penalties in respect of the aforesaid periods. Ratio |
The High Court dismissed the application. Ratio |
From this order, the appellant has preferred the present appeals. Ratio |
Notices under section 22C(1) can be issued only in course of any proceedings under the Act. Ratio |
As no proceedings were pending against the appellant, no notice under section 22C(1) could be issued to it. Ratio |
We shall presently show that no notice can be issued to a registered dealer under section 11A(1) for assessing the turnover which has escaped assessment by reason of his not filing a return. Ratio |
The impugned notices so far as they were issued under sections 22C(1) and 11A(1) may be treated as surplusage and rejected. Ratio |
Under section 10(3), if a registered dealer fails to furnish his return for any period within the prescribed time without any sufficient cause, the Commissioner may after giving him reasonable opportunity of being heard direct him to pay by way of penalty a sum not exceeding one fourth of the amount which may be assess... |
If no assessment can be made under section 11, no penalty can be levied under section 10(3). Ratio |
Therefore, the point for determination is whether the impugned notices so far as they were issued under section 11(4) are valid. Ratio |
The contention of the appellant is that the notices under section 11 (4) are invalid as they were not issued within three years from the expiry of the aforesaid periods. ARG |
We see no force in this contention. Ratio |
Section 11(4) does not prescribe a period of limitation for the issue of a notice under it. Ratio |
In Ghanshyam Das vs Regional Assistant Commissioner of Sales Tax, Nagpur(1), the Court by a majority decided with reference to section 11.(4) and section 11A, as it stood before its amendment by the Bombay Sales Tax Laws (Validating Provisions and Amendment) Act, 1959, that a notice under section 11(4) initiates new pr... |
The case was decided without reference to section 11A(3) inserted by the Amending Act and is no authority on the interpretation of that sub section. Ratio |
Section 11A(3) now expressly provides that nothing in section 11A(1) shall apply to any proceeding including any notice issued under section 11. Ratio |
The section is retrospective in operation. Ratio |
It follows that the period of (1) , 682 limitation prescribed by section 11A(1) cannot be applied to a proceeding or a notice issued under section 11(4). Ratio |
There is no period of limitation prescribed for a notice or a proceeding initiated under section 11(4). Ratio |
Consequently, the impugned notices issued under section 11 (4) are not barred by limitation and are not invalid. Ratio |
The argument then is that section 11(4)(a) offends article 14 of the Constitution in two ways. Ratio |
Firstly, it is said that it is open to the sales tax authorities to proceed at their sweet will either under section 11(4)(a) or under section IIA(1) against a registered dealer for his failure to file returns and the principle of Shree Meenakshi Mills Ltd. vs Sri A. V. Viswanatha Sastri and Another(1) is invoked. Rati... |
We find no merit in this contention. Ratio |
Section 11(4)(a) specially pro vides for the initiation of proceedings against a registered dealer who has not furnished returns in respect of any period by the prescribed date. Ratio |
Having made this special provision, the legislature must be taken to have intended that in a case falling under section 11(4)(a) the sales tax authorities must proceed against the registered dealer under section 11(4)(a) and not under section IIA(1). Ratio |
The special provision must be taken silently to exclude all cases failing within it from the purview of the more general provision. Ratio |
Moreover if a statute is capable of two constructions, that construction should be given which will uphold it rather than the one which will invalidate it. Ratio |
Construing sections 11(4)(a) and 11A(1) together we should, therefore, hold that the cases falling within section 11(4)(a) are excluded from the purview of section 11 A(1). Ratio |
The point that there is no over lapping of sections 11(4)(a) and 11A(1) is made clearer by s.11A(3). Ratio |
The decisions under section 34(1)(b) of the Indian Income tax Act, 1922 such as Maharaj Kumar Kamai Singh vs Commissioner of Incometax, Bihar and Orissa(2) and under section 14 of the Business Profits Tax Act, 1947 such as Commissioner of Income Tax vs Narsee Nagsee & Co.(2) are distinguishable. Ratio |
In those Acts, there was no special provision corresponding to section 11(4) for proceeding against registered dealers who have not filed returns, and the question how far the special provisions would exclude cases within it from the purview of the more general provision could not arise. Ratio |
In Ghanshyam Das 's case(3), none of the notices in question was issued under section 11A, and the Court did not say that a registered dealer could be proceeded against under section 11 A for not filing a return. Ratio |
Nor did the Court consider the effect of section 11 A(3). Ratio |
It is true that the majority decision held that the phrase "escaped assessment" in section 11A includes that of a turnover which has not been assessed at all because no assessment proceedings were initiated. Ratio |
But having regard to the special provisions of section 11(4) read with section 11A(3), the power under section 11 A(1) as interpreted in Ghanshyam Das 's case(4) to assess turnover which escaped assessment by reason of non filing of returns must be confined to cases of (1) (2) [1959] Supp. 1 S.C.R. 10. Ratio |
(3) , (4) ; 683 unregistered dealers. Ratio |
As pointed out already, cases of registered dealers falling within section 11(4) are excluded from the purview of section 11A(1). Ratio |
It is next said that section 11 (4) offends article 14 of the Constitution because no period of limitation is prescribed for a notice under it, whereas periods of limitation are prescribed for notices under sections IIA(L) and 11(5). Ratio |
We see no merit in this contention. Ratio |
The Act 'deals with registered and unregistered dealers differently in many ways. Ratio |
The classification and differential treatment of re gistered and unregistered dealers are based on substantial differences having reasonable relation to the object of the Act. Ratio |
A registered dealer unlike an unregistered dealer is under a statutory obligation to file returns without any notice being served upon him and to pay the full amount of tax due from him before furnishing the return (sections 10 and 12). Ratio |
A dealer who has registered himself under the Act admits his liability to furnish returns whereas a dealer who has not registered himself makes no such admission. Ratio |
A registered dealer has certain advantages under the Act which are denied to an unregistered dealer. Ratio |
Section 2(1)(a)(ii) exempts from tax sales of a registered dealer of goods specified in his certificate of registration as being intended for use by him as raw materials in the manufacture of goods for sale by actual delivery in the State for consumption therein. Ratio |
An unregistered dealer cannot get the benefit of this exemption. Ratio |
Moreover, section 2(j) (a)(ii) exempts from tax sales to a registered dealer of goods de clared by him in the prescribed form as being intended for resale by him by actual delivery in the State for consumption therein. Ratio |
The sales to an unregistered dealer are not so exempt. Ratio |
Consequently, a registered dealer call buy his goods from the producer or the wholesaler at a cheaper price and has thus ail economic advantage over an unregistered dealer. Ratio |
In the matter of penalties, sections 10(3) and 22C(1) treat the two classes of dealers on the same footing, but sections 11 (4), 11(5) and 11 A(1) treat them differently. Ratio |
No penalty can be levied on a registered dealer under section 11(4) but heavy penalties may be levied on an unregistered dealer under sections 11(5) and 11A(1). Ratio |
While prescribing periods of limitation for proceedings against an unregistered dealer under sections 11(5) and 11A(1), the legislature has wisely not prescribed a period of limitation for a proceeding initiated under section 11(4)(a) against a registered dealer considering that (1) the registered dealer is under a sta... |
The bar of limitation in the case (if an unregistered dealer and the absence of such a bar in the case of a registered dealer cannot be regarded as unjust or discriminatory. Ratio |
Questions of policy are not to be debated in this Court. Ratio |
There is no compulsion on the legislature to prescribe a period of limitation in every case. Ratio |
In taxing statutes the legislature has a large measure of discretion. Ratio |
We cannot strike 684 down section 11(4)(a) because of some preconceived notion that the same period of limitation should be prescribed for proceedings against both registered and unregistered dealers. Ratio |
In Ghanshyam Das 's case(1), Raghubar Dayal, J. at p. 459 clearly held that section 11(4) is not violative of article 14. PRE |
The majority did not dissent from this opinion. PRE |
We hold that section 11 (4) is not violative of article 14 and we uphold it. Ratio |
It follows that the notices issued on July 8, 1959 under section 11(4) are valid in respect of the entire period from 1 11 1952 to 31 10 1955. Ratio |
As regards the alternative contention of the respondent, that the notices issued in 1955 validly initiated, proceedings under section 11(4) for the period from 1 2 1953 to 31 10 1955 we are glad to find that the majority has accepted this contention. Ratio |
The irregularities, if any, in the notices do not invalidate them. Ratio |
However, for the reasons already mentioned, we are of opinion that the impugned notices issued on July 8, 1959 are valid. Ratio |
In the result, the appeals are dismissed with costs. Ratio |
ORDER In accordance with the opinion of the majority these appeals are partly allowed with respect to turn over from 1 5 1952 to 31 1 1953. RPC |
In other respects the appeals are dismissed. RPC |
No order as to costs. RPC |
il Appeal No. 129 of 1965. FAC |
Appeal by special leave from the judgment and decree dated August 24, 1962 of the Andhra Pradesh High Court in Appeal No. 419 of 1958. FAC |
S.T. Desai, M.S.K. Sastri and M.S. Narasimhan, for the appellants. FAC |
H.R.Gokhale and R. Ganapathy lyer, for respondents Nos. FAC |
The Judgment of the Court was delivered by Shelat, J. FAC |
This appeal by special leave is directed against the judgment and decree of the High Court of Andhra Pradesh confirming the dismissal by the trial Court of the suit filed by appellants 1 and 2. FAC |
The pedigree set out below clarifies the relationship between the parties : 295 Chintalapati Venkatapatiraju Somaraj Sitharamaraju (Plaintiff in O.S. 21/23) Pullamraju (died 19 12 1913)widow Surayamma (died 22 10 50) Daughter Subbay Venkay Somaraju Son (said Radhyamma died in yamma yamma died to have been (died 6 4 27)... |
Kalidindi Venkata Kali Pinnamaraju Subbaraju(1st dindi Gopala Prabhakara Plaintiff) Raju (2nd Lakshmipatiraju Plaintiff) 6th Defendant) Venkatapati Venkayamma Rajayamma Suryamma Raju Subbaraju (1 st Defendant) Rangamma Sitaramaraju Venkatapatiraju Vijayasubbaraju (2nd Defendant) (3rd Defendant) (4th Defendant) Pullamra... |
Somaraju died on March 29, 1921 whereupon the said Surayamma claimed that he had left a will dated March 26, 1921 whereunder all the properties had been bequeathed to her absolutely. FAC |
Sitaramaraju the uncle of Pullamraju filed Suit No. 21 of 1923 for a declaration that Somaraju 's will was not valid as he had executed it when he was a minor and was not in a sound disposing state of mind. FAC |
296 Surayamma in her written statement filed in that Suit contended that Somaraju was a major having been born on January 7. 1903 and was in a sound disposing state of mind when he executed the said will. FAC |
The suit ended in a compromise decree by which Sitartmaraju admitted that Somaraju was a major when he died, that he was in a sound disposing state of mind and that the will therefore was genuine and valid. FAC |
Under the compromise decree he received 26 out of about 57 acres of land and the rest of the property was retained by Surayamma. FAC |
Thereafter Surayamma conducted herself as the absolute owner of the properties which came to her under the said decree. FAC |
By two deeds, dated March 30, 1925 she settled part of the land received by her under the said decree in favour of her two daughters the mothers of plaintiffs 1 and 2 and defendant 6 respectively. FAC |
The said properties have since been possessed of and enjoyed first by the said two daughters and later by plaintiffs 1 and 2 and defendant 6. FAC |
On November 3 1947 Surayamma gifted another portion of the said property to defendant No. 6. Surayamma died on October 22, 1950. FAC |
Plaintiffs and 2 and defendant 6 (the present appellants) thereafter obtained a deed of surrender from their mothers and filed the suit out of which this appeal arises, contending that they were the nearest reversioners of Somaraju, being the sons of his sisters; that the said compromise decree was collusive that the s... |
By a subsequent amendment of the plaint they also contended that some of/he lands left by Somaraju were not disposed of under the said will that there was consequently intestacy in respect thereof which in any event they as reversioners were entitled to claim. FAC |
The respondents resisted the suit contending that the said will was valid, that the said compromise decree was binding on the appellants and that they having accepted and enjoyed the said properties settled upon their mothers by Surayamma, they were estopped from challenging the will or the said decree. FAC |
They also denied that any of the properties left by Somaraju remained undisposed of by the said will or that there resulted any intestacy regarding them or that on such intestacy the appellants became entitled thereto. FAC |
The trial Court held that Somaraju did execute the will that the original will was with the appellants and was suppressed by them, that therefore its certified copy produced from the records of the court was admissible, that the ' said will was valid as Somaraju was a major and in a sound disposing state of mind when h... |
The trial Court also repelled the contention that Somaraju left any property undisposed of under the said will or 297 that the appellants became entitled thereto upon an intestacy. RLC |
In appeal against the said judgment the High Court confirmed the dismissal of the suit by the trial Court. RLC |
The High Court also confirmed the trial Court 's conclusion that the certified copy of the said will was admissible as secondary evidence thereof and that Somaraju was a major and in a sound disposing state of mind when he executed the said will. RLC |
The High Court also confirmed the trial Court 's conclusion that the said decree was binding on the appellants and that 'the appellants and their respective mothers having accepted and enjoyed the properties settled upon them by Surayamma were estopped from disputing either the will or the said decree. RLC |
Mr. S.T. Desai for the appellants raised the following contentions : (1) that the burden of proof that the will was validly executed by Somaraju and that he was a major at the time of executing it was upon the respondents and that they failed to discharge that burden; (2) that the conclusion of the High Court and the t... |
As aforesaid, the respondents did not produce the original will but produced only its certified copy, exhibit B. 9; which they obtained from the record of Suit No. 21 of 1923 wherein Surayamma had filed the original will along with her written statement. FAC |
The respondents, however, had given notice to the appellants to produce the original will alleging that it was in their possession but the appellants denied the allegation and failed to produce the will. FAC |
Both the trial Court and the High Court were of the view that the said will along with other papers of Somaraju were in the appellants ' custody that they had deliberately withheld it as it was in their interest not to produce it. FAC |
The trial Court therefore was in these circumstances justified in admitting the certified copy of the will as secondary evidence of the contents of the will. Ratio |
Since the will was executed in 1921 and the testator had died soon after its execution it was not possible to produce either its writer or the witnesses who attested it. Ratio |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.