STATE OF KERALA AND OTHERS. v. C. M. FRANCIS & CO.
Citation: [1961] 3 S.C.R. 181; 1960 INSC 260
Court: Supreme Court of India
Bench: J.L. KAPUR , M. HIDAYATULLAH, J.C. SHAH
Judgment date:
Case summary
1960 INSC 260. Supreme Court of India judgment dated 1960-12-12. STATE OF KERALA AND OTHERS. v. C. M. FRANCIS & CO. Read the judgment and case details on...
Judgment text
3 S. C. R. SUPREME COURT REPORTS 181 STATE OF KERALA AND OTHERS. v. C. M. FRANCIS & CO. (J. L. KAPUR, M. HIDAYATULLAH and J. c. SHAH, JJ. ) Sales Tax-Recovery of-Remedies open to the authorities- Code of Criminal Procedure, 1898 (V of 1898, s. 386(r)(b)-Travan- core Cochin General Sales Tax Act (XF of II25 Malayalam Era), SS. I] and 19. The respondents were assessed to sales tax under the Travancore Cochin General Sales Tax Act and proceedings were started against them under s. 13 of the Act for the recovery of the arrears of Sales Tax as if they were arrears of land revenue. The proceedings were not fruitful. Thereafter a prosecution under s. 19 of the Act was instituted against the partners who plead- ed guilty and the magistrate issued warrants under s. 386(1)(h) of the Code of Criminal Procedure to the Collector of the District for the recovery of the arrears of sales tax as if they were a fine imposed by that court. The authorities again started proceedings under s.
13 of the Act read with Travancore Cochin Revenue Recovery Act, 195r, and certain properties were attached. The respondents urged that in as much as they were prosecuted under s. 19 of the Act and the magistrate had issued warrants, the procedure for recovery under s. 13 of the Act was not available. The question was whether s. 19 was to be taken to prevail over s. 13 of the Act. Held, that neither of the remedies for recovery of arrears of tax as laid down by ss. 13 and 19 of the Travancore Cochin General Sales Tax Act was destructive of each other and unless the statute laid down in express words or by necessary implica~ lion that one remedy was to the exclusion of the other, both the remedies were open to the authorities and they could resort to any one of them at their option. Shankar Sabai v. Din Dial, I. L. R. , [1889] 12 All. 409 (F. B. }, 418, approved. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 279 of 1959.
Appeal by special leave from the judgment and order dated November 18, 1957, of the Kerala High Court in 0. P. No. 87 of 1956. A. V. Sayed Muhammad, for the appellants. The respondents did not appear. December 12. State of Kerala and Ors. 182 SUPREME COURT REPORTS [1961] 1960. December 12. The Judgment of the Court was delivered by HIDAYATULLAH, J. -This is an appeal with the spe- v. cial leave of this Court against the J 0 udgment of the C. M. Ft'ancis High' Court of Kerala dated November 18, 1957, &Co. passed in a petition for writ of prohibition under Art. Hidayatullah J. 226 of the Constitution. ·The State of Kerala and the Tahsildars of Kottayam and Kanjirappally Taluks are the appellants, and C. M. Francis & Co. , a partner- ship firm, is the first respondent, and the partners of the firm are the remaining respondents. The respondents were doing business in hill produce like pepper, ginger, betelnuts etc.
, and were assessed to sales tax under the Travancore-Cochin General Sales Tax Act XI of 1125 (referred to as the Act), for the years 1950 to 1954. The respondents have to pay a sum of Rs. 1,01,716-4-3 as tax. In 1954, proceedings were started against them under s. 13 of the Act, which provides that if the taxis not paid as laid down in that section, the whole of the amount or such pai-t thereof as remains due, may be recovered as if it were an arrear of land revenue. It appears that the pro- ceedings were not fruitful, and a prosMution under s. 19 of the Act was instituted against the partners in the Court of the First Class Magistrate, Ponkunnam. Respondents 2 to 5 pleaded guilty, and the Magistrate passed an order on October 18, 1955 as follows: "The sentence or other final order: A 1 to 4 sen- tenced to pay a fine of Rs. 50/- each and in default to undergo S:' I. for one month each. A 1 to 4 admit that they failed to pay on demand by the compe- tent authority, a sum of Rs.
1,01,716-4-3 due from them as sales tax for the years 1950 to 1954. This amount will be realised from A· 1 to 4, jointly or severally, individually or collectively under the provisions of the Cr. P. C. for realisation of criminal · fines, as if it were a fine imposed by this court on each, accused individually and all of them together. Takll steps for the realisation. " Witrrants under s. 386 (1) (b) of the Code of Crimi- nal Procedure were issued to the Collector of Kot- tayam District for recovery of the arrears of sales tax. 3 S. C. R. SUPREME COIJRT REPORTS 183 The authorities, however, started proceedings again '9 6 • . under s. 13 of the Act read with the provisions of the State of Kera/a Travancore-Cochin Revenue Recovery Act, 1951 (VII and ors. of 1951 ), to recover . the amount as arrears of land re- v. venue, and attached some properties belonging to the c. M. Francis respondents within the jurisdiction of the second and & Co.
third appellants, the Tahsildars of Kottayam and H'd - 11 h 1 Kanjirappally Taluks. The firm thereupon filed the I ayatu a . petition under Art. 226 of the Constitution for a writ of prohibition or other order or direction to the effect that the proceedings for realisation of the arrears under the Revenue Recovery Act be quashed. In the petition, the respondents urged that inasmuch as they were prosecuted under s. 19 of the Act and the Magis- trate had issued warrants, the procedure for recovery under s. 13 was not available. They contended that under s. 386 of the Code of Criminal Procedure the warrant is to be deemed to be a decree and has to be executed according to civil process applicable to the execution of decrees nuder the Code of Civil Procedure. They, therefore, submitted that tho procedure under s. 19 of the Act was no longer opeu, and could not be proceeded with. Section 19 of the Act, so far as it is material, reads as follows: "Any person who, .......... ..
(b) fails to pay within the time allowed, any tax assessed on him ...... under this Act, or ......... (d) fraudulently evades the payment of any tax assessed on him .......... .. . shall on conviction by a Magistrate of the first class, be liable to a fine which may extend to one thou- sand rupees and in the case of a conviction under clause (b), (d) ...... , the Magistrate shall specify in the order the tax ...... which the person convicted has failed or evaded to pay ...... and the tax ...... so specified shall be recoverable as if it were a fine under the Code of Criminal Procedure for the time- being in force. " In dealing with the question, the learned Judges of the High Court felt that s. 13 of the Act was in the 1960 State of Kerala and Ors. v. C. M. Francis -Co. Hidaj1atulla1' ]. 1960 December xa.
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