1. The petnr. in crim. Revn. petn. no. 164 is the proprietor of a Coffee Club & Catering Establishment at Horakote who has been assessed to a tax of Rs. 156 on the turnover of his business estimated at Rs. 10,000 a year. The levy is stated to be provisional & a demand notice was served on him on 26-3-1949. He failed to pay the assessment though the time prescribed for payment had expired. The petnr. in crim Revn. petn. No. 165 is a Soda Manufacturer & Bakery merchant at Hosakote. He was also provisionally assessed to a tax of Rs. 156 for the year 1948-1949 on the turnover of his business. A demand notice was served upon him & he failed to pay the tax within the time allowed. Both of them were prosecuted under S. 20(b), Mysore Sales Tax Act. In both the cases, the receipt of the notice is admitted & the plea raised is ‘not guilty’. They have challenged the validity of the tax. A preliminary objection was raised by the prosecution that the Ct. is precluded from considering the validity of the tax which was overruled holding that the accused is perfectly at liberty to question or challenge the assessment or any other action taken by the authorities under the Act. On merits, the learned Mag. held that the levy of the tax is justified & disallowed the objection & that the rules were not ultra vires of the Rule Making Power of the Govt. & the rules relating to the provisional assessment were well within the ambit authorised. The accused in both the cases were convicted & sentenced to pay a fine of Rs. 25 with a direction that the tax assessed shall be recovered as if it were a fine.

2. The petnr. in Crim. Revn. petn. No. 290 is a merchant dealing with ground nuts at Davangere who was also prosecuted for non-payment of the tax levied & convicted to pay a fine of Rs. 150 in addition to the tax levied. His plea, while not disputing the facts of the case, is that he was not liable to pay the tax assessed as the assessment order is itself illegal & ultra vires & outside the provisions of the Mysore Sales Tax Act. The Mag. in the latter case came to the finding that a criminal Ct. cannot assume jurisdiction to question the legality or propriety of the order of assessment passed by the assessing authority. The common question that is canvassed in all these cases is whether a criminal Ct. is or is not precluded from examining the validity of the assessment. It is argued for the assesses that they are not liable to pay the tax by reason of the fact that the turnover does not exceed Rs. 10,000 per year & the Assessing Officer has to prove their liability without which the tax levied is invalid & illegal. The assesses in the cases under consideration comes under the definition of a ‘dealer’ meaning any person who carries on business of buying & selling. Sections 8 to 9, Mysore Sales Tax Act, provide for the grant of licenses of exemption from taxation. Sections 10 & 11 deal with registration of dealers & collection of tax. The procedure to be followed by the Assessing Authority is prescribed in S. 12 under which every dealer is required to submit a return & the Assessing Authority shall assess the tax if he is satisfied that the return is correct & complete; If the return is not submitted or, if it appears to the Assessing Authority that the return submitted is incorrect & incomplete, the Assessing Authority shall assess the dealer to the best of his judgment, after giving a reasonable opportunity to the assesses to prove the correctness & completeness of the return submitted by him. Section 14 of the Act provides for filing an appeal objecting to an assessment Section is constitutes the Govt. as the Revising Authority. After appeal & revn., the dealer or the Assessing Authority may, by appln. in writing, require the Appellate or the Revisional Authority to refer to the H.C any question of law arising out of such order & if the Appellate or the Revising Authority refuses to make such reference, the appct. may apply to the H.C within thirty days of such refusal order under S. 16 of the Act. It is thus seen that in the words of Lord Uthwatt Raleigh Investment Go. Ltd. v. Governor General in Council, A.I.R (34) 1917 P.C 78 : (74 I.A 50).

“Effective & appropriate machinery is therefore provided for the Act itself for the review of the grounds of law of any assessment”.

3. Section 20 deals with offences & penalties & the relevant portion of the section applied to these cases is Cl. (b) which reads with the section thus:

“Any person who fails to pay within the time allowed, any tax assessed on him, or any fee due from him, under tola Act shall on conviction by a Mag. of the First Class be liable to a fine …. & the tax, fee or amount so specified shall be recovered as if it were a fine”.

4. Under S. 22 of the Act, the assessments fixed by the Assessing Authority are precluded from being questioned in civil Cts. Section 25 of the Act enables the Govt. to make rules to carry out the purposes of the Act & the rules made by the Govt. prescribe a detailed procedure to be followed in the levy of tax. Rule 30 empowers the Assessing Authority to fix provisionally the tax on the basis of a return, the correctness of which if the Assessing Officer is satisfied; if be is not so satisfied, the officer may, after such enquiry, determine the turnover of the dealer to the best of his judgment & fix provisionally the annual tax payable. After the provisional assessment, the assesses is given an Opportunity to file a return when the provisional Assessment will be finalised. It is not disputed that in all these cases, the Assessing Officer has complied with the provisions of the Act & the rules thereunder. The prosecution has thus made out a prima facie case regarding the levy of tax. It was open to the assessees to prove before the Assessing Authority that the turn, over upon which the tax is levied was incorrect. The assesses have defaulted in not having taken steps in that direction. If the assessees felt aggrieved by the order of the assessing Officer they might have questioned the decision of the Assessing Officer on facts or on law involved, by either an appeal under S. 14 or revn. under S. 15. In the absence of any such appeal or revn. within the time prescribed, the decision of the Assessing Authority becomes final & the tax becomes payable. On failure to comply with the demand notice, it is open to the authorities under S. 13 to enforce the payment as if it were an arrear of land revenue. The assessee also incurs the penalty under S. 20 & the payment of tax would be enforced by an appln. to the concerned Mag. It is thus seen that a statutory obligation to pay arises by virtue of levy of the assessment under the provisions of the Act itself. The remedy for the enforcement of payment in a Criminal Ct. is of a summary nature & it is proved to the satisfaction of the Ct. that the assessee has become liable under the Act for payment. It is not the province of a Criminal Ct. to enter into an elaborate enquiry about the correctness of the levy or the validity thereof.

5. It is argued that S. 32 of the Act which runs thus:

“Save as provided in S. 16, no assessment made & no order passed under this Act or the rules made thereunder by any assessing authority shall be called in question in any Civil Ct. & save as is provided in Ss. 14 & 15, no appeal or appln. for revn. shall lie against any such assessment or order.”

6. Only precludes a civil Ct. from calling in question the assessment made & the assessee is free to raise the question in a criminal Ct. As observed by Lord Uthwatt in the case referred to above at p. 81:

“Jurisdiction to question the assessment otherwise than by use of the machinery expressly provided for by the Act would appear to be inconsistent with the statutory obligation to pay arising by virtue of assessment.”

7. I have held earlier on 6-12-1950 in Cri. Revn. Petn. No. 230 of 1950-1951 Thimmina Katte Kotrappa…Accused- v. Assistant Sales Tax Officer…Complainant-., (A.I.R (38) 1951 Mysore 37) that:

“Section 22 prohibits the Civil Cts. from questioning by appeal or appln. by way of revn., the assessment made or an order pissed by the Assessing Authority. If the provisions contained in the Act or the rules made thereunder, & the method & manner in which the orders are made are precluded from the cognizance by the Civil Cts. which evidently constitute proper forum, to test the legality or otherwise of the orders a for tiorari it follows that in the prosecution which are merely meant to penalise the default & enforce the payment of the tax assessed, the validity of the tax assessed cannot be questioned.”

8. Relying upon a decision of the Madras H.C in In re Appa Rao, A.I.R (36) 1949 Mad. 418 : (50 Cr. L.J 547) it was contended that under S. 15(b), Madras General Sales Tax Act which is similar to S. 20(b), Mysore Act, the H.C came to the conclusion that:

“… before that question can be decided, it is fully open to the accused to prove that the tax was not lawfully due & that no offence was, therefore, committed.”

9. The expression ‘due’ used in S. 15(b) which penalises for failure to pay the tax due is interpreted to mean ‘lawfully due’. But the expression in our Act is ‘tax assessed’. It cannot be said that the expressions ‘tax due’ & ‘tax assessed’ connote the same meaning. As there is fundamental difference between those expressions the decision under the Madras General Sales Act is inapplicable. The Madras Legislature amended the Act by adding S. 16(a) which bars the criminal Cts. from entering into the legality or otherwise of the assessment. Even after the amendment the ruling is applied to the assessment for the period prior to the date of amendment. It is represented at the Bar that the Mysore Legislature has recently adopted an amendment of S. 22 by omitting the expression ‘Civil’ is S. 22, Mysore Act, which in effect precludes any Ct. civil or criminal, from entering into the validity of the taxation. On the grounds of the Madras decision, I am asked to apply similar interpretation since the tax under consideration relates to a period earlier to the amendment. The amendment in Mysore is introduced to remove possible doubts that may be entertained in construing the provisions of the Act. Even without the amendment, this Ct. had come to the conclusion that criminal Cts. have no jurisdiction to question the validity of the tax. The prosecution has proved the liability of the assessees on facts in the first two cases & on law in the last mentioned case. I am, therefore, of opinion that the conviction in all the three cases should be upheld. Regarding the sentence, the amount of fine levied in Cri. Revn. petns. Nos. 164 & 165 is Rs. 25 each, which is by no means heavy; but the levy of Rs. 150 in Cri. Revn Petn. No. 290 appears to be rather severe, & I, therefore, reduce it to Rs. 50.

10. In the result, with the modification of sentence in Cri. Revn. Petn. No. 290, all the petns. fail & are dismissed.

V.S.B

Petitions dismissed.