SooperKanoon Citation | sooperkanoon.com/371016 |
Subject | Sales Tax |
Court | Karnataka High Court |
Decided On | Feb-02-1977 |
Case Number | Criminal Revision Petition No. 468 of 1976 |
Judge | D.B. Lal, J. |
Reported in | [1977]40STC320(Kar) |
Acts | Karnataka Sales Tax Act, 1957 - Sections 12, 12B, 13(3) and 13(4) |
Appellant | S. Dasappa and Company |
Respondent | The Commercial Tax Officer, Mysore Circle, Mysore |
Appellant Advocate | S.D. Chhatre, Adv. |
Respondent Advocate | T.J. Chouta, High Court Government Pleader |
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'S Dasappa and Company Vs the Commercial Tax Officer Mysore Circle Mysore - Citation 371016 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '371016', 'acts' => '<a href="/act/62040/karnataka-sales-tax-act-1957-complete-act">Karnataka Sales Tax Act, 1957</a> - Sections 12, 12B, 13(3) and 13(4)', 'appealno' => 'Criminal Revision Petition No. 468 of 1976', 'appellant' => 'S. Dasappa and Company', 'authreffered' => '', 'casename' => 'S. Dasappa and Company Vs. the Commercial Tax Officer, Mysore Circle, Mysore', 'casenote' => ' - COMPANIES ACT, 1956 [C.A. No. 1/1956]. Sections 529 & 529A & State Financial Corporation Act 1951, Section 29: [S.R. Bannurmath & A.N. Venugopala Gowda, JJ] Proceedings under Taking over of assets of the industrial concern in realisation of dues Sale of assets - Applicability of provisions of Section 529 and 529A Held, The Corporation cannot exercise its rights if the assets of the industrial concern, has already vested in the Company Court or if the Official Liquidator had been put in charge of the assets of the industrial concern. If the winding up proceedings are not set in motion, then, there is no legal impediment to the Corporation to take action under Section 29 of the S.F.C. Act, 1951 and permission of Company Court is not required to be obtained. In the absence of commencement of winding up proceedings, the provision of Section 529 and 529A of the Companies Act cannot be made applicable. The action of the Corporation under Section 29 of the S.F.C. Act is lawful. Further, the Corporation took over only the assets and not the management. The money realised by effecting sale under Sub-Section (2) of Section 29, cannot be apportioned or ordered to be paid to the workmen of the industrial concern, when the industrial concern is not under the winding up proceedings, in terms of the provisions under the Companies Act. The Corporation cannot be held liable either jointly or severally to pay the closure compensation or other claims of the workmen. The industry is liable to pay the wages of the lockout period and the closure compensation to the workmen. -- STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. -- STATE FINANCIAL CORPORATIONS ACT, 1951. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. - As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. Secondly, the demand notice was issued and again they failed to pay the tax.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'S.D. Chhatre, Adv.', 'counseldef' => 'T.J. Chouta, High Court Government Pleader', 'court' => 'Karnataka', 'court_type' => 'HC', 'decidedon' => '1977-02-02', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => 'D.B. Lal, J.', 'judgement' => 'ORDER<p style="text-align: justify;">Lal, J. </p><p style="text-align: justify;">1. This is a criminal revision under section 13(4) of the <a href="/act/62040/karnataka-sales-tax-act-1957-complete-act">Karnataka Sales Tax Act, 1957</a> (hereinafter to be referred to as the 'Act'), and it arises in the following circumstances : </p><p style="text-align: justify;">M/s. S. Dasappa and Company is said to be a partnership firm having their place of business at Santepet, Kollegal, District Mysore. It is not disputed that they are assessees under the Act and, accordingly, under sections 12 and 12-B of the Act, they were liable to submit returns for assessment. They were also liable to pay the tax in advance. It is again beyond the pale of controversy that M/s. S. Dasappa and Company, the present petitioners, submitted the annual return under section 12 in form 4, but did not pay any tax in advance. The Commercial Tax Officer issued a notice of demand under form 3-A under rule 18(1)(c) made under the Act. Despite that notice of demand, the tax was not paid. Accordingly, it was considered by the department that the tax was an amount due under the Act from such dealer. Under section 13(3)(b), the Commercial Tax Officer filed an application before the Magistrate that the amount be realised as if it were a fine imposed by him. Thereafter, a distress warrant was issued by the Magistrate and a lorry belonging to the petitioners was attached. Against that order passed by learned Magistrate, the present revision is filed under sub-section (4) of section 13 of the Act. </p><p style="text-align: justify;">2. The learned counsel for the petitioners contended that before issuing a distress warrant, the Magistrate was required to issue a notice to show cause. These is no requirement for such a prior notice under section 421 of the Code of Criminal Procedure. Similarly, there is no provision for a prior notice to show cause under section 13(4) of the Act. Therefore, the order of the learned Magistrate cannot be struck down merely, because he did not issue a notice to show cause. The petitioners have also submitted a return in form 4 and, on the basis of that return, the sales tax due in a sum of Rs. 67,200 was demanded. The records of the Commercial Tax Officer is brought for a perusal of the court by the learned State Public Prosecutor and from that record it is evident that the said return was filed by the petitioners and under a calculation made on the basis of their return, a sum of Rs. 67,200 was payable as sales tax. In fact, the petitioners have themselves mentioned that amount as payable by them for sales tax. Since under sections 12 and 12-B of the Act, the tax was payable in advance and the same was not paid, the demand notice under form 3-A was issued. In these circumstances, even principles of natural justice never required that a prior notice to show cause should have been given before sending a warrant for attachment and sale of any movable property belonging to the assessee. </p><p style="text-align: justify;">3. It is next contended by the learned counsel that there was no assessment order and the learned Magistrate was required to see the assessment order before he could proceed to issue the warrant for attachment and sale of any movable property. For this the learned counsel relied on a decision in Ganesh Narayana Hedge v. Commercial Tax Officer, Sirsi [[1976] 37 S.T.C. 567; (1976) 1 Kar. L.J. 233]. But the facts of that case were different and that ruling would have no effect in the present case. As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. That apart, no material was produced before the Magistrate even stating as to whether the petitioners were the assessees and as to whether any tax could at all be realised from them. The Magistrate did not apply his mind and issued the distress warrant. In these circumstances, it was held that the order of the Magistrate was illegal and could not be sustained. The position in the instant case is entirely different. The file of the Commercial Tax Officer does indicate that the petitioners themselves filed a return and calculated the amount of tax payable by them. The very same tax was demanded from the petitioners under a notice of demand. Firstly, they ought to have paid the tax in advance which they never did. Secondly, the demand notice was issued and again they failed to pay the tax. In view of sections 12 and 12-B of the Act, decidedly that was the amount due under the Act from such a dealer. As such, upon the plain language of section 13(3), the amount due was recoverable as if it were a fine imposed by a Magistrate. Thus, the said ruling relied upon by the learned counsel will not be of any help to the petitioners. An assessment order was not required, as under section 12-B, the tax was an amount due under the Act from such dealer. In fact, that was the amount pointed out by the dealer himself as payable by him. Therefore, the order of the learned Magistrate cannot be questioned on this ground that either he did not apply his mind or that he did not see the required documents before issuing the distress warrant. </p><p style="text-align: justify;">4. The learned counsel then pointed out that the warrant issued was vague inasmuch as it did not specify the particular lorry which was to be attached. That was not the requirement of law. Under section 421, the warrant had to specify for the attachment and sale of any movable property belonging to the assessee. It could not be contemplated that the lorry or any other movable property would at all be available for attachment at the time the order was to be served upon the assessee. Therefore, no exception can be taken to the form of the warrant issued. It was rather the correct warrant and provided for all that was required under law to be provided for. </p><p style="text-align: justify;">5. An ingenious argument was raised by the learned counsel for the petitioners with reference to section 421 of the Code of Criminal Procedure. It was stated that the learned Magistrate could not impose a fine exceeding Rs. 5,000 and, therefore, the issue of distress warrant for recovery of Rs. 67,200 by attachment and sale of property was an act beyond the jurisdiction of the Magistrate. For that, the learned counsel relied on a Division Bench case of this Court in Mohanlal Premchand v. Commercial Tax Officer [[1971] 28 S.T.C. 492; (1971) 1 Mys. L.J. 72]. But, that case related to the unamended section 13(3)(b). The language 'notwithstanding anything contained in the Code of Criminal Procedure, 1898' was not there before 1972. That is why, the Division Bench of this Court came to the conclusion that the Magistrate issuing the warrant of distress could not ask for recovery of an amount exceeding his own power to levy fine. The above-noted language used in sub-section (3)(b) rather makes the position clear. The limit imposed by the legislature on the levy of fine will no longer hold goods and the Magistrate would realise the amount 'as if it were a fine imposed by him' notwithstanding that the amount to be recovered is much more than the fine which could be imposed by him. </p><p style="text-align: justify;">6. In this view of the matter, I do not find any defect in the order made by the learned Magistrate. As such, no revision is sustainable against that order. The petition is, therefore, dismissed. </p><p style="text-align: justify;">7. Petition dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[1977]40STC320(Kar)', 'ratiodecidendi' => '', 'respondent' => 'The Commercial Tax Officer, Mysore Circle, Mysore', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ), 'casename_url' => 's-dasappa-company-vs-commercial-officer', 'args' => array( (int) 0 => '371016', (int) 1 => 's-dasappa-company-vs-commercial-officer' ) ) $title_for_layout = 'S Dasappa and Company Vs the Commercial Tax Officer Mysore Circle Mysore - Citation 371016 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '371016', 'acts' => '<a href="/act/62040/karnataka-sales-tax-act-1957-complete-act">Karnataka Sales Tax Act, 1957</a> - Sections 12, 12B, 13(3) and 13(4)', 'appealno' => 'Criminal Revision Petition No. 468 of 1976', 'appellant' => 'S. Dasappa and Company', 'authreffered' => '', 'casename' => 'S. Dasappa and Company Vs. the Commercial Tax Officer, Mysore Circle, Mysore', 'casenote' => ' - COMPANIES ACT, 1956 [C.A. No. 1/1956]. Sections 529 & 529A & State Financial Corporation Act 1951, Section 29: [S.R. Bannurmath & A.N. Venugopala Gowda, JJ] Proceedings under Taking over of assets of the industrial concern in realisation of dues Sale of assets - Applicability of provisions of Section 529 and 529A Held, The Corporation cannot exercise its rights if the assets of the industrial concern, has already vested in the Company Court or if the Official Liquidator had been put in charge of the assets of the industrial concern. If the winding up proceedings are not set in motion, then, there is no legal impediment to the Corporation to take action under Section 29 of the S.F.C. Act, 1951 and permission of Company Court is not required to be obtained. In the absence of commencement of winding up proceedings, the provision of Section 529 and 529A of the Companies Act cannot be made applicable. The action of the Corporation under Section 29 of the S.F.C. Act is lawful. Further, the Corporation took over only the assets and not the management. The money realised by effecting sale under Sub-Section (2) of Section 29, cannot be apportioned or ordered to be paid to the workmen of the industrial concern, when the industrial concern is not under the winding up proceedings, in terms of the provisions under the Companies Act. The Corporation cannot be held liable either jointly or severally to pay the closure compensation or other claims of the workmen. The industry is liable to pay the wages of the lockout period and the closure compensation to the workmen. -- STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. -- STATE FINANCIAL CORPORATIONS ACT, 1951. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. - As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. Secondly, the demand notice was issued and again they failed to pay the tax.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'S.D. Chhatre, Adv.', 'counseldef' => 'T.J. Chouta, High Court Government Pleader', 'court' => 'Karnataka', 'court_type' => 'HC', 'decidedon' => '1977-02-02', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => 'D.B. Lal, J.', 'judgement' => 'ORDER<p>Lal, J. </p><p>1. This is a criminal revision under section 13(4) of the <a>Karnataka Sales Tax Act, 1957</a> (hereinafter to be referred to as the 'Act'), and it arises in the following circumstances : </p><p>M/s. S. Dasappa and Company is said to be a partnership firm having their place of business at Santepet, Kollegal, District Mysore. It is not disputed that they are assessees under the Act and, accordingly, under sections 12 and 12-B of the Act, they were liable to submit returns for assessment. They were also liable to pay the tax in advance. It is again beyond the pale of controversy that M/s. S. Dasappa and Company, the present petitioners, submitted the annual return under section 12 in form 4, but did not pay any tax in advance. The Commercial Tax Officer issued a notice of demand under form 3-A under rule 18(1)(c) made under the Act. Despite that notice of demand, the tax was not paid. Accordingly, it was considered by the department that the tax was an amount due under the Act from such dealer. Under section 13(3)(b), the Commercial Tax Officer filed an application before the Magistrate that the amount be realised as if it were a fine imposed by him. Thereafter, a distress warrant was issued by the Magistrate and a lorry belonging to the petitioners was attached. Against that order passed by learned Magistrate, the present revision is filed under sub-section (4) of section 13 of the Act. </p><p>2. The learned counsel for the petitioners contended that before issuing a distress warrant, the Magistrate was required to issue a notice to show cause. These is no requirement for such a prior notice under section 421 of the Code of Criminal Procedure. Similarly, there is no provision for a prior notice to show cause under section 13(4) of the Act. Therefore, the order of the learned Magistrate cannot be struck down merely, because he did not issue a notice to show cause. The petitioners have also submitted a return in form 4 and, on the basis of that return, the sales tax due in a sum of Rs. 67,200 was demanded. The records of the Commercial Tax Officer is brought for a perusal of the court by the learned State Public Prosecutor and from that record it is evident that the said return was filed by the petitioners and under a calculation made on the basis of their return, a sum of Rs. 67,200 was payable as sales tax. In fact, the petitioners have themselves mentioned that amount as payable by them for sales tax. Since under sections 12 and 12-B of the Act, the tax was payable in advance and the same was not paid, the demand notice under form 3-A was issued. In these circumstances, even principles of natural justice never required that a prior notice to show cause should have been given before sending a warrant for attachment and sale of any movable property belonging to the assessee. </p><p>3. It is next contended by the learned counsel that there was no assessment order and the learned Magistrate was required to see the assessment order before he could proceed to issue the warrant for attachment and sale of any movable property. For this the learned counsel relied on a decision in Ganesh Narayana Hedge v. Commercial Tax Officer, Sirsi [[1976] 37 S.T.C. 567; (1976) 1 Kar. L.J. 233]. But the facts of that case were different and that ruling would have no effect in the present case. As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. That apart, no material was produced before the Magistrate even stating as to whether the petitioners were the assessees and as to whether any tax could at all be realised from them. The Magistrate did not apply his mind and issued the distress warrant. In these circumstances, it was held that the order of the Magistrate was illegal and could not be sustained. The position in the instant case is entirely different. The file of the Commercial Tax Officer does indicate that the petitioners themselves filed a return and calculated the amount of tax payable by them. The very same tax was demanded from the petitioners under a notice of demand. Firstly, they ought to have paid the tax in advance which they never did. Secondly, the demand notice was issued and again they failed to pay the tax. In view of sections 12 and 12-B of the Act, decidedly that was the amount due under the Act from such a dealer. As such, upon the plain language of section 13(3), the amount due was recoverable as if it were a fine imposed by a Magistrate. Thus, the said ruling relied upon by the learned counsel will not be of any help to the petitioners. An assessment order was not required, as under section 12-B, the tax was an amount due under the Act from such dealer. In fact, that was the amount pointed out by the dealer himself as payable by him. Therefore, the order of the learned Magistrate cannot be questioned on this ground that either he did not apply his mind or that he did not see the required documents before issuing the distress warrant. </p><p>4. The learned counsel then pointed out that the warrant issued was vague inasmuch as it did not specify the particular lorry which was to be attached. That was not the requirement of law. Under section 421, the warrant had to specify for the attachment and sale of any movable property belonging to the assessee. It could not be contemplated that the lorry or any other movable property would at all be available for attachment at the time the order was to be served upon the assessee. Therefore, no exception can be taken to the form of the warrant issued. It was rather the correct warrant and provided for all that was required under law to be provided for. </p><p>5. An ingenious argument was raised by the learned counsel for the petitioners with reference to section 421 of the Code of Criminal Procedure. It was stated that the learned Magistrate could not impose a fine exceeding Rs. 5,000 and, therefore, the issue of distress warrant for recovery of Rs. 67,200 by attachment and sale of property was an act beyond the jurisdiction of the Magistrate. For that, the learned counsel relied on a Division Bench case of this Court in Mohanlal Premchand v. Commercial Tax Officer [[1971] 28 S.T.C. 492; (1971) 1 Mys. L.J. 72]. But, that case related to the unamended section 13(3)(b). The language 'notwithstanding anything contained in the Code of Criminal Procedure, 1898' was not there before 1972. That is why, the Division Bench of this Court came to the conclusion that the Magistrate issuing the warrant of distress could not ask for recovery of an amount exceeding his own power to levy fine. The above-noted language used in sub-section (3)(b) rather makes the position clear. The limit imposed by the legislature on the levy of fine will no longer hold goods and the Magistrate would realise the amount 'as if it were a fine imposed by him' notwithstanding that the amount to be recovered is much more than the fine which could be imposed by him. </p><p>6. In this view of the matter, I do not find any defect in the order made by the learned Magistrate. As such, no revision is sustainable against that order. The petition is, therefore, dismissed. </p><p>7. Petition dismissed. <p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[1977]40STC320(Kar)', 'ratiodecidendi' => '', 'respondent' => 'The Commercial Tax Officer, Mysore Circle, Mysore', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ) $casename_url = 's-dasappa-company-vs-commercial-officer' $args = array( (int) 0 => '371016', (int) 1 => 's-dasappa-company-vs-commercial-officer' ) $url = 'https://sooperkanoon.com/case/amp/371016/s-dasappa-company-vs-commercial-officer' $ctype = ' High Court'include - APP/View/Case/amp.ctp, line 120 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 120]- companies act, 1956 [c.a. no. 1/1956]. sections 529 & 529a & state financial corporation act 1951, section 29: [s.r. bannurmath & a.n. venugopala gowda, jj] proceedings under taking over of assets of the industrial concern in realisation of dues sale of assets - applicability of provisions of section 529 and 529a held, the corporation cannot exercise its rights if the assets of the industrial concern, has already vested in the company court or if the official liquidator had been put in charge of the assets of the industrial concern. if the winding up proceedings are not set in motion, then, there is no legal impediment to the corporation to take action under section 29 of the s.f.c. act, 1951 and permission of company court is not required to be obtained. in the absence of.....Code Contextecho "<div class='table-bordered'><b>Excerpt:</b><br/>";
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'S Dasappa and Company Vs the Commercial Tax Officer Mysore Circle Mysore - Citation 371016 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '371016', 'acts' => '<a href="/act/62040/karnataka-sales-tax-act-1957-complete-act">Karnataka Sales Tax Act, 1957</a> - Sections 12, 12B, 13(3) and 13(4)', 'appealno' => 'Criminal Revision Petition No. 468 of 1976', 'appellant' => 'S. Dasappa and Company', 'authreffered' => '', 'casename' => 'S. Dasappa and Company Vs. the Commercial Tax Officer, Mysore Circle, Mysore', 'casenote' => ' - COMPANIES ACT, 1956 [C.A. No. 1/1956]. Sections 529 & 529A & State Financial Corporation Act 1951, Section 29: [S.R. Bannurmath & A.N. Venugopala Gowda, JJ] Proceedings under Taking over of assets of the industrial concern in realisation of dues Sale of assets - Applicability of provisions of Section 529 and 529A Held, The Corporation cannot exercise its rights if the assets of the industrial concern, has already vested in the Company Court or if the Official Liquidator had been put in charge of the assets of the industrial concern. If the winding up proceedings are not set in motion, then, there is no legal impediment to the Corporation to take action under Section 29 of the S.F.C. Act, 1951 and permission of Company Court is not required to be obtained. In the absence of commencement of winding up proceedings, the provision of Section 529 and 529A of the Companies Act cannot be made applicable. The action of the Corporation under Section 29 of the S.F.C. Act is lawful. Further, the Corporation took over only the assets and not the management. The money realised by effecting sale under Sub-Section (2) of Section 29, cannot be apportioned or ordered to be paid to the workmen of the industrial concern, when the industrial concern is not under the winding up proceedings, in terms of the provisions under the Companies Act. The Corporation cannot be held liable either jointly or severally to pay the closure compensation or other claims of the workmen. The industry is liable to pay the wages of the lockout period and the closure compensation to the workmen. -- STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. -- STATE FINANCIAL CORPORATIONS ACT, 1951. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. - As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. Secondly, the demand notice was issued and again they failed to pay the tax.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'S.D. Chhatre, Adv.', 'counseldef' => 'T.J. Chouta, High Court Government Pleader', 'court' => 'Karnataka', 'court_type' => 'HC', 'decidedon' => '1977-02-02', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => 'D.B. Lal, J.', 'judgement' => 'ORDER<p style="text-align: justify;">Lal, J. </p><p style="text-align: justify;">1. This is a criminal revision under section 13(4) of the <a href="/act/62040/karnataka-sales-tax-act-1957-complete-act">Karnataka Sales Tax Act, 1957</a> (hereinafter to be referred to as the 'Act'), and it arises in the following circumstances : </p><p style="text-align: justify;">M/s. S. Dasappa and Company is said to be a partnership firm having their place of business at Santepet, Kollegal, District Mysore. It is not disputed that they are assessees under the Act and, accordingly, under sections 12 and 12-B of the Act, they were liable to submit returns for assessment. They were also liable to pay the tax in advance. It is again beyond the pale of controversy that M/s. S. Dasappa and Company, the present petitioners, submitted the annual return under section 12 in form 4, but did not pay any tax in advance. The Commercial Tax Officer issued a notice of demand under form 3-A under rule 18(1)(c) made under the Act. Despite that notice of demand, the tax was not paid. Accordingly, it was considered by the department that the tax was an amount due under the Act from such dealer. Under section 13(3)(b), the Commercial Tax Officer filed an application before the Magistrate that the amount be realised as if it were a fine imposed by him. Thereafter, a distress warrant was issued by the Magistrate and a lorry belonging to the petitioners was attached. Against that order passed by learned Magistrate, the present revision is filed under sub-section (4) of section 13 of the Act. </p><p style="text-align: justify;">2. The learned counsel for the petitioners contended that before issuing a distress warrant, the Magistrate was required to issue a notice to show cause. These is no requirement for such a prior notice under section 421 of the Code of Criminal Procedure. Similarly, there is no provision for a prior notice to show cause under section 13(4) of the Act. Therefore, the order of the learned Magistrate cannot be struck down merely, because he did not issue a notice to show cause. The petitioners have also submitted a return in form 4 and, on the basis of that return, the sales tax due in a sum of Rs. 67,200 was demanded. The records of the Commercial Tax Officer is brought for a perusal of the court by the learned State Public Prosecutor and from that record it is evident that the said return was filed by the petitioners and under a calculation made on the basis of their return, a sum of Rs. 67,200 was payable as sales tax. In fact, the petitioners have themselves mentioned that amount as payable by them for sales tax. Since under sections 12 and 12-B of the Act, the tax was payable in advance and the same was not paid, the demand notice under form 3-A was issued. In these circumstances, even principles of natural justice never required that a prior notice to show cause should have been given before sending a warrant for attachment and sale of any movable property belonging to the assessee. </p><p style="text-align: justify;">3. It is next contended by the learned counsel that there was no assessment order and the learned Magistrate was required to see the assessment order before he could proceed to issue the warrant for attachment and sale of any movable property. For this the learned counsel relied on a decision in Ganesh Narayana Hedge v. Commercial Tax Officer, Sirsi [[1976] 37 S.T.C. 567; (1976) 1 Kar. L.J. 233]. But the facts of that case were different and that ruling would have no effect in the present case. As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. That apart, no material was produced before the Magistrate even stating as to whether the petitioners were the assessees and as to whether any tax could at all be realised from them. The Magistrate did not apply his mind and issued the distress warrant. In these circumstances, it was held that the order of the Magistrate was illegal and could not be sustained. The position in the instant case is entirely different. The file of the Commercial Tax Officer does indicate that the petitioners themselves filed a return and calculated the amount of tax payable by them. The very same tax was demanded from the petitioners under a notice of demand. Firstly, they ought to have paid the tax in advance which they never did. Secondly, the demand notice was issued and again they failed to pay the tax. In view of sections 12 and 12-B of the Act, decidedly that was the amount due under the Act from such a dealer. As such, upon the plain language of section 13(3), the amount due was recoverable as if it were a fine imposed by a Magistrate. Thus, the said ruling relied upon by the learned counsel will not be of any help to the petitioners. An assessment order was not required, as under section 12-B, the tax was an amount due under the Act from such dealer. In fact, that was the amount pointed out by the dealer himself as payable by him. Therefore, the order of the learned Magistrate cannot be questioned on this ground that either he did not apply his mind or that he did not see the required documents before issuing the distress warrant. </p><p style="text-align: justify;">4. The learned counsel then pointed out that the warrant issued was vague inasmuch as it did not specify the particular lorry which was to be attached. That was not the requirement of law. Under section 421, the warrant had to specify for the attachment and sale of any movable property belonging to the assessee. It could not be contemplated that the lorry or any other movable property would at all be available for attachment at the time the order was to be served upon the assessee. Therefore, no exception can be taken to the form of the warrant issued. It was rather the correct warrant and provided for all that was required under law to be provided for. </p><p style="text-align: justify;">5. An ingenious argument was raised by the learned counsel for the petitioners with reference to section 421 of the Code of Criminal Procedure. It was stated that the learned Magistrate could not impose a fine exceeding Rs. 5,000 and, therefore, the issue of distress warrant for recovery of Rs. 67,200 by attachment and sale of property was an act beyond the jurisdiction of the Magistrate. For that, the learned counsel relied on a Division Bench case of this Court in Mohanlal Premchand v. Commercial Tax Officer [[1971] 28 S.T.C. 492; (1971) 1 Mys. L.J. 72]. But, that case related to the unamended section 13(3)(b). The language 'notwithstanding anything contained in the Code of Criminal Procedure, 1898' was not there before 1972. That is why, the Division Bench of this Court came to the conclusion that the Magistrate issuing the warrant of distress could not ask for recovery of an amount exceeding his own power to levy fine. The above-noted language used in sub-section (3)(b) rather makes the position clear. The limit imposed by the legislature on the levy of fine will no longer hold goods and the Magistrate would realise the amount 'as if it were a fine imposed by him' notwithstanding that the amount to be recovered is much more than the fine which could be imposed by him. </p><p style="text-align: justify;">6. In this view of the matter, I do not find any defect in the order made by the learned Magistrate. As such, no revision is sustainable against that order. The petition is, therefore, dismissed. </p><p style="text-align: justify;">7. Petition dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[1977]40STC320(Kar)', 'ratiodecidendi' => '', 'respondent' => 'The Commercial Tax Officer, Mysore Circle, Mysore', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ), 'casename_url' => 's-dasappa-company-vs-commercial-officer', 'args' => array( (int) 0 => '371016', (int) 1 => 's-dasappa-company-vs-commercial-officer' ) ) $title_for_layout = 'S Dasappa and Company Vs the Commercial Tax Officer Mysore Circle Mysore - Citation 371016 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '371016', 'acts' => '<a href="/act/62040/karnataka-sales-tax-act-1957-complete-act">Karnataka Sales Tax Act, 1957</a> - Sections 12, 12B, 13(3) and 13(4)', 'appealno' => 'Criminal Revision Petition No. 468 of 1976', 'appellant' => 'S. Dasappa and Company', 'authreffered' => '', 'casename' => 'S. Dasappa and Company Vs. the Commercial Tax Officer, Mysore Circle, Mysore', 'casenote' => ' - COMPANIES ACT, 1956 [C.A. No. 1/1956]. Sections 529 & 529A & State Financial Corporation Act 1951, Section 29: [S.R. Bannurmath & A.N. Venugopala Gowda, JJ] Proceedings under Taking over of assets of the industrial concern in realisation of dues Sale of assets - Applicability of provisions of Section 529 and 529A Held, The Corporation cannot exercise its rights if the assets of the industrial concern, has already vested in the Company Court or if the Official Liquidator had been put in charge of the assets of the industrial concern. If the winding up proceedings are not set in motion, then, there is no legal impediment to the Corporation to take action under Section 29 of the S.F.C. Act, 1951 and permission of Company Court is not required to be obtained. In the absence of commencement of winding up proceedings, the provision of Section 529 and 529A of the Companies Act cannot be made applicable. The action of the Corporation under Section 29 of the S.F.C. Act is lawful. Further, the Corporation took over only the assets and not the management. The money realised by effecting sale under Sub-Section (2) of Section 29, cannot be apportioned or ordered to be paid to the workmen of the industrial concern, when the industrial concern is not under the winding up proceedings, in terms of the provisions under the Companies Act. The Corporation cannot be held liable either jointly or severally to pay the closure compensation or other claims of the workmen. The industry is liable to pay the wages of the lockout period and the closure compensation to the workmen. -- STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. -- STATE FINANCIAL CORPORATIONS ACT, 1951. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. - As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. Secondly, the demand notice was issued and again they failed to pay the tax.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'S.D. Chhatre, Adv.', 'counseldef' => 'T.J. Chouta, High Court Government Pleader', 'court' => 'Karnataka', 'court_type' => 'HC', 'decidedon' => '1977-02-02', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => 'D.B. Lal, J.', 'judgement' => 'ORDER<p>Lal, J. </p><p>1. This is a criminal revision under section 13(4) of the <a>Karnataka Sales Tax Act, 1957</a> (hereinafter to be referred to as the 'Act'), and it arises in the following circumstances : </p><p>M/s. S. Dasappa and Company is said to be a partnership firm having their place of business at Santepet, Kollegal, District Mysore. It is not disputed that they are assessees under the Act and, accordingly, under sections 12 and 12-B of the Act, they were liable to submit returns for assessment. They were also liable to pay the tax in advance. It is again beyond the pale of controversy that M/s. S. Dasappa and Company, the present petitioners, submitted the annual return under section 12 in form 4, but did not pay any tax in advance. The Commercial Tax Officer issued a notice of demand under form 3-A under rule 18(1)(c) made under the Act. Despite that notice of demand, the tax was not paid. Accordingly, it was considered by the department that the tax was an amount due under the Act from such dealer. Under section 13(3)(b), the Commercial Tax Officer filed an application before the Magistrate that the amount be realised as if it were a fine imposed by him. Thereafter, a distress warrant was issued by the Magistrate and a lorry belonging to the petitioners was attached. Against that order passed by learned Magistrate, the present revision is filed under sub-section (4) of section 13 of the Act. </p><p>2. The learned counsel for the petitioners contended that before issuing a distress warrant, the Magistrate was required to issue a notice to show cause. These is no requirement for such a prior notice under section 421 of the Code of Criminal Procedure. Similarly, there is no provision for a prior notice to show cause under section 13(4) of the Act. Therefore, the order of the learned Magistrate cannot be struck down merely, because he did not issue a notice to show cause. The petitioners have also submitted a return in form 4 and, on the basis of that return, the sales tax due in a sum of Rs. 67,200 was demanded. The records of the Commercial Tax Officer is brought for a perusal of the court by the learned State Public Prosecutor and from that record it is evident that the said return was filed by the petitioners and under a calculation made on the basis of their return, a sum of Rs. 67,200 was payable as sales tax. In fact, the petitioners have themselves mentioned that amount as payable by them for sales tax. Since under sections 12 and 12-B of the Act, the tax was payable in advance and the same was not paid, the demand notice under form 3-A was issued. In these circumstances, even principles of natural justice never required that a prior notice to show cause should have been given before sending a warrant for attachment and sale of any movable property belonging to the assessee. </p><p>3. It is next contended by the learned counsel that there was no assessment order and the learned Magistrate was required to see the assessment order before he could proceed to issue the warrant for attachment and sale of any movable property. For this the learned counsel relied on a decision in Ganesh Narayana Hedge v. Commercial Tax Officer, Sirsi [[1976] 37 S.T.C. 567; (1976) 1 Kar. L.J. 233]. But the facts of that case were different and that ruling would have no effect in the present case. As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. That apart, no material was produced before the Magistrate even stating as to whether the petitioners were the assessees and as to whether any tax could at all be realised from them. The Magistrate did not apply his mind and issued the distress warrant. In these circumstances, it was held that the order of the Magistrate was illegal and could not be sustained. The position in the instant case is entirely different. The file of the Commercial Tax Officer does indicate that the petitioners themselves filed a return and calculated the amount of tax payable by them. The very same tax was demanded from the petitioners under a notice of demand. Firstly, they ought to have paid the tax in advance which they never did. Secondly, the demand notice was issued and again they failed to pay the tax. In view of sections 12 and 12-B of the Act, decidedly that was the amount due under the Act from such a dealer. As such, upon the plain language of section 13(3), the amount due was recoverable as if it were a fine imposed by a Magistrate. Thus, the said ruling relied upon by the learned counsel will not be of any help to the petitioners. An assessment order was not required, as under section 12-B, the tax was an amount due under the Act from such dealer. In fact, that was the amount pointed out by the dealer himself as payable by him. Therefore, the order of the learned Magistrate cannot be questioned on this ground that either he did not apply his mind or that he did not see the required documents before issuing the distress warrant. </p><p>4. The learned counsel then pointed out that the warrant issued was vague inasmuch as it did not specify the particular lorry which was to be attached. That was not the requirement of law. Under section 421, the warrant had to specify for the attachment and sale of any movable property belonging to the assessee. It could not be contemplated that the lorry or any other movable property would at all be available for attachment at the time the order was to be served upon the assessee. Therefore, no exception can be taken to the form of the warrant issued. It was rather the correct warrant and provided for all that was required under law to be provided for. </p><p>5. An ingenious argument was raised by the learned counsel for the petitioners with reference to section 421 of the Code of Criminal Procedure. It was stated that the learned Magistrate could not impose a fine exceeding Rs. 5,000 and, therefore, the issue of distress warrant for recovery of Rs. 67,200 by attachment and sale of property was an act beyond the jurisdiction of the Magistrate. For that, the learned counsel relied on a Division Bench case of this Court in Mohanlal Premchand v. Commercial Tax Officer [[1971] 28 S.T.C. 492; (1971) 1 Mys. L.J. 72]. But, that case related to the unamended section 13(3)(b). The language 'notwithstanding anything contained in the Code of Criminal Procedure, 1898' was not there before 1972. That is why, the Division Bench of this Court came to the conclusion that the Magistrate issuing the warrant of distress could not ask for recovery of an amount exceeding his own power to levy fine. The above-noted language used in sub-section (3)(b) rather makes the position clear. The limit imposed by the legislature on the levy of fine will no longer hold goods and the Magistrate would realise the amount 'as if it were a fine imposed by him' notwithstanding that the amount to be recovered is much more than the fine which could be imposed by him. </p><p>6. In this view of the matter, I do not find any defect in the order made by the learned Magistrate. As such, no revision is sustainable against that order. The petition is, therefore, dismissed. </p><p>7. Petition dismissed. <p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[1977]40STC320(Kar)', 'ratiodecidendi' => '', 'respondent' => 'The Commercial Tax Officer, Mysore Circle, Mysore', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ) $casename_url = 's-dasappa-company-vs-commercial-officer' $args = array( (int) 0 => '371016', (int) 1 => 's-dasappa-company-vs-commercial-officer' ) $url = 'https://sooperkanoon.com/case/amp/371016/s-dasappa-company-vs-commercial-officer' $ctype = ' High Court'include - APP/View/Case/amp.ctp, line 120 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'S Dasappa and Company Vs the Commercial Tax Officer Mysore Circle Mysore - Citation 371016 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '371016', 'acts' => '<a href="/act/62040/karnataka-sales-tax-act-1957-complete-act">Karnataka Sales Tax Act, 1957</a> - Sections 12, 12B, 13(3) and 13(4)', 'appealno' => 'Criminal Revision Petition No. 468 of 1976', 'appellant' => 'S. Dasappa and Company', 'authreffered' => '', 'casename' => 'S. Dasappa and Company Vs. the Commercial Tax Officer, Mysore Circle, Mysore', 'casenote' => ' - COMPANIES ACT, 1956 [C.A. No. 1/1956]. Sections 529 & 529A & State Financial Corporation Act 1951, Section 29: [S.R. Bannurmath & A.N. Venugopala Gowda, JJ] Proceedings under Taking over of assets of the industrial concern in realisation of dues Sale of assets - Applicability of provisions of Section 529 and 529A Held, The Corporation cannot exercise its rights if the assets of the industrial concern, has already vested in the Company Court or if the Official Liquidator had been put in charge of the assets of the industrial concern. If the winding up proceedings are not set in motion, then, there is no legal impediment to the Corporation to take action under Section 29 of the S.F.C. Act, 1951 and permission of Company Court is not required to be obtained. In the absence of commencement of winding up proceedings, the provision of Section 529 and 529A of the Companies Act cannot be made applicable. The action of the Corporation under Section 29 of the S.F.C. Act is lawful. Further, the Corporation took over only the assets and not the management. The money realised by effecting sale under Sub-Section (2) of Section 29, cannot be apportioned or ordered to be paid to the workmen of the industrial concern, when the industrial concern is not under the winding up proceedings, in terms of the provisions under the Companies Act. The Corporation cannot be held liable either jointly or severally to pay the closure compensation or other claims of the workmen. The industry is liable to pay the wages of the lockout period and the closure compensation to the workmen. -- STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. -- STATE FINANCIAL CORPORATIONS ACT, 1951. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. - As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. Secondly, the demand notice was issued and again they failed to pay the tax.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'S.D. Chhatre, Adv.', 'counseldef' => 'T.J. Chouta, High Court Government Pleader', 'court' => 'Karnataka', 'court_type' => 'HC', 'decidedon' => '1977-02-02', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => 'D.B. Lal, J.', 'judgement' => 'ORDER<p style="text-align: justify;">Lal, J. </p><p style="text-align: justify;">1. This is a criminal revision under section 13(4) of the <a href="/act/62040/karnataka-sales-tax-act-1957-complete-act">Karnataka Sales Tax Act, 1957</a> (hereinafter to be referred to as the 'Act'), and it arises in the following circumstances : </p><p style="text-align: justify;">M/s. S. Dasappa and Company is said to be a partnership firm having their place of business at Santepet, Kollegal, District Mysore. It is not disputed that they are assessees under the Act and, accordingly, under sections 12 and 12-B of the Act, they were liable to submit returns for assessment. They were also liable to pay the tax in advance. It is again beyond the pale of controversy that M/s. S. Dasappa and Company, the present petitioners, submitted the annual return under section 12 in form 4, but did not pay any tax in advance. The Commercial Tax Officer issued a notice of demand under form 3-A under rule 18(1)(c) made under the Act. Despite that notice of demand, the tax was not paid. Accordingly, it was considered by the department that the tax was an amount due under the Act from such dealer. Under section 13(3)(b), the Commercial Tax Officer filed an application before the Magistrate that the amount be realised as if it were a fine imposed by him. Thereafter, a distress warrant was issued by the Magistrate and a lorry belonging to the petitioners was attached. Against that order passed by learned Magistrate, the present revision is filed under sub-section (4) of section 13 of the Act. </p><p style="text-align: justify;">2. The learned counsel for the petitioners contended that before issuing a distress warrant, the Magistrate was required to issue a notice to show cause. These is no requirement for such a prior notice under section 421 of the Code of Criminal Procedure. Similarly, there is no provision for a prior notice to show cause under section 13(4) of the Act. Therefore, the order of the learned Magistrate cannot be struck down merely, because he did not issue a notice to show cause. The petitioners have also submitted a return in form 4 and, on the basis of that return, the sales tax due in a sum of Rs. 67,200 was demanded. The records of the Commercial Tax Officer is brought for a perusal of the court by the learned State Public Prosecutor and from that record it is evident that the said return was filed by the petitioners and under a calculation made on the basis of their return, a sum of Rs. 67,200 was payable as sales tax. In fact, the petitioners have themselves mentioned that amount as payable by them for sales tax. Since under sections 12 and 12-B of the Act, the tax was payable in advance and the same was not paid, the demand notice under form 3-A was issued. In these circumstances, even principles of natural justice never required that a prior notice to show cause should have been given before sending a warrant for attachment and sale of any movable property belonging to the assessee. </p><p style="text-align: justify;">3. It is next contended by the learned counsel that there was no assessment order and the learned Magistrate was required to see the assessment order before he could proceed to issue the warrant for attachment and sale of any movable property. For this the learned counsel relied on a decision in Ganesh Narayana Hedge v. Commercial Tax Officer, Sirsi [[1976] 37 S.T.C. 567; (1976) 1 Kar. L.J. 233]. But the facts of that case were different and that ruling would have no effect in the present case. As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. That apart, no material was produced before the Magistrate even stating as to whether the petitioners were the assessees and as to whether any tax could at all be realised from them. The Magistrate did not apply his mind and issued the distress warrant. In these circumstances, it was held that the order of the Magistrate was illegal and could not be sustained. The position in the instant case is entirely different. The file of the Commercial Tax Officer does indicate that the petitioners themselves filed a return and calculated the amount of tax payable by them. The very same tax was demanded from the petitioners under a notice of demand. Firstly, they ought to have paid the tax in advance which they never did. Secondly, the demand notice was issued and again they failed to pay the tax. In view of sections 12 and 12-B of the Act, decidedly that was the amount due under the Act from such a dealer. As such, upon the plain language of section 13(3), the amount due was recoverable as if it were a fine imposed by a Magistrate. Thus, the said ruling relied upon by the learned counsel will not be of any help to the petitioners. An assessment order was not required, as under section 12-B, the tax was an amount due under the Act from such dealer. In fact, that was the amount pointed out by the dealer himself as payable by him. Therefore, the order of the learned Magistrate cannot be questioned on this ground that either he did not apply his mind or that he did not see the required documents before issuing the distress warrant. </p><p style="text-align: justify;">4. The learned counsel then pointed out that the warrant issued was vague inasmuch as it did not specify the particular lorry which was to be attached. That was not the requirement of law. Under section 421, the warrant had to specify for the attachment and sale of any movable property belonging to the assessee. It could not be contemplated that the lorry or any other movable property would at all be available for attachment at the time the order was to be served upon the assessee. Therefore, no exception can be taken to the form of the warrant issued. It was rather the correct warrant and provided for all that was required under law to be provided for. </p><p style="text-align: justify;">5. An ingenious argument was raised by the learned counsel for the petitioners with reference to section 421 of the Code of Criminal Procedure. It was stated that the learned Magistrate could not impose a fine exceeding Rs. 5,000 and, therefore, the issue of distress warrant for recovery of Rs. 67,200 by attachment and sale of property was an act beyond the jurisdiction of the Magistrate. For that, the learned counsel relied on a Division Bench case of this Court in Mohanlal Premchand v. Commercial Tax Officer [[1971] 28 S.T.C. 492; (1971) 1 Mys. L.J. 72]. But, that case related to the unamended section 13(3)(b). The language 'notwithstanding anything contained in the Code of Criminal Procedure, 1898' was not there before 1972. That is why, the Division Bench of this Court came to the conclusion that the Magistrate issuing the warrant of distress could not ask for recovery of an amount exceeding his own power to levy fine. The above-noted language used in sub-section (3)(b) rather makes the position clear. The limit imposed by the legislature on the levy of fine will no longer hold goods and the Magistrate would realise the amount 'as if it were a fine imposed by him' notwithstanding that the amount to be recovered is much more than the fine which could be imposed by him. </p><p style="text-align: justify;">6. In this view of the matter, I do not find any defect in the order made by the learned Magistrate. As such, no revision is sustainable against that order. The petition is, therefore, dismissed. </p><p style="text-align: justify;">7. Petition dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[1977]40STC320(Kar)', 'ratiodecidendi' => '', 'respondent' => 'The Commercial Tax Officer, Mysore Circle, Mysore', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ), 'casename_url' => 's-dasappa-company-vs-commercial-officer', 'args' => array( (int) 0 => '371016', (int) 1 => 's-dasappa-company-vs-commercial-officer' ) ) $title_for_layout = 'S Dasappa and Company Vs the Commercial Tax Officer Mysore Circle Mysore - Citation 371016 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '371016', 'acts' => '<a href="/act/62040/karnataka-sales-tax-act-1957-complete-act">Karnataka Sales Tax Act, 1957</a> - Sections 12, 12B, 13(3) and 13(4)', 'appealno' => 'Criminal Revision Petition No. 468 of 1976', 'appellant' => 'S. Dasappa and Company', 'authreffered' => '', 'casename' => 'S. Dasappa and Company Vs. the Commercial Tax Officer, Mysore Circle, Mysore', 'casenote' => ' - COMPANIES ACT, 1956 [C.A. No. 1/1956]. Sections 529 & 529A & State Financial Corporation Act 1951, Section 29: [S.R. Bannurmath & A.N. Venugopala Gowda, JJ] Proceedings under Taking over of assets of the industrial concern in realisation of dues Sale of assets - Applicability of provisions of Section 529 and 529A Held, The Corporation cannot exercise its rights if the assets of the industrial concern, has already vested in the Company Court or if the Official Liquidator had been put in charge of the assets of the industrial concern. If the winding up proceedings are not set in motion, then, there is no legal impediment to the Corporation to take action under Section 29 of the S.F.C. Act, 1951 and permission of Company Court is not required to be obtained. In the absence of commencement of winding up proceedings, the provision of Section 529 and 529A of the Companies Act cannot be made applicable. The action of the Corporation under Section 29 of the S.F.C. Act is lawful. Further, the Corporation took over only the assets and not the management. The money realised by effecting sale under Sub-Section (2) of Section 29, cannot be apportioned or ordered to be paid to the workmen of the industrial concern, when the industrial concern is not under the winding up proceedings, in terms of the provisions under the Companies Act. The Corporation cannot be held liable either jointly or severally to pay the closure compensation or other claims of the workmen. The industry is liable to pay the wages of the lockout period and the closure compensation to the workmen. -- STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. -- STATE FINANCIAL CORPORATIONS ACT, 1951. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. - As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. Secondly, the demand notice was issued and again they failed to pay the tax.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'S.D. Chhatre, Adv.', 'counseldef' => 'T.J. Chouta, High Court Government Pleader', 'court' => 'Karnataka', 'court_type' => 'HC', 'decidedon' => '1977-02-02', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => 'D.B. Lal, J.', 'judgement' => 'ORDER<p>Lal, J. </p><p>1. This is a criminal revision under section 13(4) of the <a>Karnataka Sales Tax Act, 1957</a> (hereinafter to be referred to as the 'Act'), and it arises in the following circumstances : </p><p>M/s. S. Dasappa and Company is said to be a partnership firm having their place of business at Santepet, Kollegal, District Mysore. It is not disputed that they are assessees under the Act and, accordingly, under sections 12 and 12-B of the Act, they were liable to submit returns for assessment. They were also liable to pay the tax in advance. It is again beyond the pale of controversy that M/s. S. Dasappa and Company, the present petitioners, submitted the annual return under section 12 in form 4, but did not pay any tax in advance. The Commercial Tax Officer issued a notice of demand under form 3-A under rule 18(1)(c) made under the Act. Despite that notice of demand, the tax was not paid. Accordingly, it was considered by the department that the tax was an amount due under the Act from such dealer. Under section 13(3)(b), the Commercial Tax Officer filed an application before the Magistrate that the amount be realised as if it were a fine imposed by him. Thereafter, a distress warrant was issued by the Magistrate and a lorry belonging to the petitioners was attached. Against that order passed by learned Magistrate, the present revision is filed under sub-section (4) of section 13 of the Act. </p><p>2. The learned counsel for the petitioners contended that before issuing a distress warrant, the Magistrate was required to issue a notice to show cause. These is no requirement for such a prior notice under section 421 of the Code of Criminal Procedure. Similarly, there is no provision for a prior notice to show cause under section 13(4) of the Act. Therefore, the order of the learned Magistrate cannot be struck down merely, because he did not issue a notice to show cause. The petitioners have also submitted a return in form 4 and, on the basis of that return, the sales tax due in a sum of Rs. 67,200 was demanded. The records of the Commercial Tax Officer is brought for a perusal of the court by the learned State Public Prosecutor and from that record it is evident that the said return was filed by the petitioners and under a calculation made on the basis of their return, a sum of Rs. 67,200 was payable as sales tax. In fact, the petitioners have themselves mentioned that amount as payable by them for sales tax. Since under sections 12 and 12-B of the Act, the tax was payable in advance and the same was not paid, the demand notice under form 3-A was issued. In these circumstances, even principles of natural justice never required that a prior notice to show cause should have been given before sending a warrant for attachment and sale of any movable property belonging to the assessee. </p><p>3. It is next contended by the learned counsel that there was no assessment order and the learned Magistrate was required to see the assessment order before he could proceed to issue the warrant for attachment and sale of any movable property. For this the learned counsel relied on a decision in Ganesh Narayana Hedge v. Commercial Tax Officer, Sirsi [[1976] 37 S.T.C. 567; (1976) 1 Kar. L.J. 233]. But the facts of that case were different and that ruling would have no effect in the present case. As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. That apart, no material was produced before the Magistrate even stating as to whether the petitioners were the assessees and as to whether any tax could at all be realised from them. The Magistrate did not apply his mind and issued the distress warrant. In these circumstances, it was held that the order of the Magistrate was illegal and could not be sustained. The position in the instant case is entirely different. The file of the Commercial Tax Officer does indicate that the petitioners themselves filed a return and calculated the amount of tax payable by them. The very same tax was demanded from the petitioners under a notice of demand. Firstly, they ought to have paid the tax in advance which they never did. Secondly, the demand notice was issued and again they failed to pay the tax. In view of sections 12 and 12-B of the Act, decidedly that was the amount due under the Act from such a dealer. As such, upon the plain language of section 13(3), the amount due was recoverable as if it were a fine imposed by a Magistrate. Thus, the said ruling relied upon by the learned counsel will not be of any help to the petitioners. An assessment order was not required, as under section 12-B, the tax was an amount due under the Act from such dealer. In fact, that was the amount pointed out by the dealer himself as payable by him. Therefore, the order of the learned Magistrate cannot be questioned on this ground that either he did not apply his mind or that he did not see the required documents before issuing the distress warrant. </p><p>4. The learned counsel then pointed out that the warrant issued was vague inasmuch as it did not specify the particular lorry which was to be attached. That was not the requirement of law. Under section 421, the warrant had to specify for the attachment and sale of any movable property belonging to the assessee. It could not be contemplated that the lorry or any other movable property would at all be available for attachment at the time the order was to be served upon the assessee. Therefore, no exception can be taken to the form of the warrant issued. It was rather the correct warrant and provided for all that was required under law to be provided for. </p><p>5. An ingenious argument was raised by the learned counsel for the petitioners with reference to section 421 of the Code of Criminal Procedure. It was stated that the learned Magistrate could not impose a fine exceeding Rs. 5,000 and, therefore, the issue of distress warrant for recovery of Rs. 67,200 by attachment and sale of property was an act beyond the jurisdiction of the Magistrate. For that, the learned counsel relied on a Division Bench case of this Court in Mohanlal Premchand v. Commercial Tax Officer [[1971] 28 S.T.C. 492; (1971) 1 Mys. L.J. 72]. But, that case related to the unamended section 13(3)(b). The language 'notwithstanding anything contained in the Code of Criminal Procedure, 1898' was not there before 1972. That is why, the Division Bench of this Court came to the conclusion that the Magistrate issuing the warrant of distress could not ask for recovery of an amount exceeding his own power to levy fine. The above-noted language used in sub-section (3)(b) rather makes the position clear. The limit imposed by the legislature on the levy of fine will no longer hold goods and the Magistrate would realise the amount 'as if it were a fine imposed by him' notwithstanding that the amount to be recovered is much more than the fine which could be imposed by him. </p><p>6. In this view of the matter, I do not find any defect in the order made by the learned Magistrate. As such, no revision is sustainable against that order. The petition is, therefore, dismissed. </p><p>7. Petition dismissed. <p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[1977]40STC320(Kar)', 'ratiodecidendi' => '', 'respondent' => 'The Commercial Tax Officer, Mysore Circle, Mysore', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ) $casename_url = 's-dasappa-company-vs-commercial-officer' $args = array( (int) 0 => '371016', (int) 1 => 's-dasappa-company-vs-commercial-officer' ) $url = 'https://sooperkanoon.com/case/amp/371016/s-dasappa-company-vs-commercial-officer' $ctype = ' High Court'include - APP/View/Case/amp.ctp, line 123 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 123]orderlal, j. 1. this is a criminal revision under section 13(4) of the karnataka sales tax act, 1957 (hereinafter to be referred to as the 'act'), and it arises in the following circumstances : m/s. s. dasappa and company is said to be a partnership firm having their place of business at santepet, kollegal, district mysore. it is not disputed that they are assessees under the act and, accordingly, under sections 12 and 12-b of the act, they were liable to submit returns for assessment. they were also liable to pay the tax in advance. it is again beyond the pale of controversy that m/s. s. dasappa and company, the present petitioners, submitted the annual return under section 12 in form 4, but did not pay any tax in advance. the commercial tax officer issued a notice of demand under form.....Code Context}
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'S Dasappa and Company Vs the Commercial Tax Officer Mysore Circle Mysore - Citation 371016 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '371016', 'acts' => '<a href="/act/62040/karnataka-sales-tax-act-1957-complete-act">Karnataka Sales Tax Act, 1957</a> - Sections 12, 12B, 13(3) and 13(4)', 'appealno' => 'Criminal Revision Petition No. 468 of 1976', 'appellant' => 'S. Dasappa and Company', 'authreffered' => '', 'casename' => 'S. Dasappa and Company Vs. the Commercial Tax Officer, Mysore Circle, Mysore', 'casenote' => ' - COMPANIES ACT, 1956 [C.A. No. 1/1956]. Sections 529 & 529A & State Financial Corporation Act 1951, Section 29: [S.R. Bannurmath & A.N. Venugopala Gowda, JJ] Proceedings under Taking over of assets of the industrial concern in realisation of dues Sale of assets - Applicability of provisions of Section 529 and 529A Held, The Corporation cannot exercise its rights if the assets of the industrial concern, has already vested in the Company Court or if the Official Liquidator had been put in charge of the assets of the industrial concern. If the winding up proceedings are not set in motion, then, there is no legal impediment to the Corporation to take action under Section 29 of the S.F.C. Act, 1951 and permission of Company Court is not required to be obtained. In the absence of commencement of winding up proceedings, the provision of Section 529 and 529A of the Companies Act cannot be made applicable. The action of the Corporation under Section 29 of the S.F.C. Act is lawful. Further, the Corporation took over only the assets and not the management. The money realised by effecting sale under Sub-Section (2) of Section 29, cannot be apportioned or ordered to be paid to the workmen of the industrial concern, when the industrial concern is not under the winding up proceedings, in terms of the provisions under the Companies Act. The Corporation cannot be held liable either jointly or severally to pay the closure compensation or other claims of the workmen. The industry is liable to pay the wages of the lockout period and the closure compensation to the workmen. -- STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. -- STATE FINANCIAL CORPORATIONS ACT, 1951. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. - As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. Secondly, the demand notice was issued and again they failed to pay the tax.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'S.D. Chhatre, Adv.', 'counseldef' => 'T.J. Chouta, High Court Government Pleader', 'court' => 'Karnataka', 'court_type' => 'HC', 'decidedon' => '1977-02-02', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => 'D.B. Lal, J.', 'judgement' => 'ORDER<p style="text-align: justify;">Lal, J. </p><p style="text-align: justify;">1. This is a criminal revision under section 13(4) of the <a href="/act/62040/karnataka-sales-tax-act-1957-complete-act">Karnataka Sales Tax Act, 1957</a> (hereinafter to be referred to as the 'Act'), and it arises in the following circumstances : </p><p style="text-align: justify;">M/s. S. Dasappa and Company is said to be a partnership firm having their place of business at Santepet, Kollegal, District Mysore. It is not disputed that they are assessees under the Act and, accordingly, under sections 12 and 12-B of the Act, they were liable to submit returns for assessment. They were also liable to pay the tax in advance. It is again beyond the pale of controversy that M/s. S. Dasappa and Company, the present petitioners, submitted the annual return under section 12 in form 4, but did not pay any tax in advance. The Commercial Tax Officer issued a notice of demand under form 3-A under rule 18(1)(c) made under the Act. Despite that notice of demand, the tax was not paid. Accordingly, it was considered by the department that the tax was an amount due under the Act from such dealer. Under section 13(3)(b), the Commercial Tax Officer filed an application before the Magistrate that the amount be realised as if it were a fine imposed by him. Thereafter, a distress warrant was issued by the Magistrate and a lorry belonging to the petitioners was attached. Against that order passed by learned Magistrate, the present revision is filed under sub-section (4) of section 13 of the Act. </p><p style="text-align: justify;">2. The learned counsel for the petitioners contended that before issuing a distress warrant, the Magistrate was required to issue a notice to show cause. These is no requirement for such a prior notice under section 421 of the Code of Criminal Procedure. Similarly, there is no provision for a prior notice to show cause under section 13(4) of the Act. Therefore, the order of the learned Magistrate cannot be struck down merely, because he did not issue a notice to show cause. The petitioners have also submitted a return in form 4 and, on the basis of that return, the sales tax due in a sum of Rs. 67,200 was demanded. The records of the Commercial Tax Officer is brought for a perusal of the court by the learned State Public Prosecutor and from that record it is evident that the said return was filed by the petitioners and under a calculation made on the basis of their return, a sum of Rs. 67,200 was payable as sales tax. In fact, the petitioners have themselves mentioned that amount as payable by them for sales tax. Since under sections 12 and 12-B of the Act, the tax was payable in advance and the same was not paid, the demand notice under form 3-A was issued. In these circumstances, even principles of natural justice never required that a prior notice to show cause should have been given before sending a warrant for attachment and sale of any movable property belonging to the assessee. </p><p style="text-align: justify;">3. It is next contended by the learned counsel that there was no assessment order and the learned Magistrate was required to see the assessment order before he could proceed to issue the warrant for attachment and sale of any movable property. For this the learned counsel relied on a decision in Ganesh Narayana Hedge v. Commercial Tax Officer, Sirsi [[1976] 37 S.T.C. 567; (1976) 1 Kar. L.J. 233]. But the facts of that case were different and that ruling would have no effect in the present case. As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. That apart, no material was produced before the Magistrate even stating as to whether the petitioners were the assessees and as to whether any tax could at all be realised from them. The Magistrate did not apply his mind and issued the distress warrant. In these circumstances, it was held that the order of the Magistrate was illegal and could not be sustained. The position in the instant case is entirely different. The file of the Commercial Tax Officer does indicate that the petitioners themselves filed a return and calculated the amount of tax payable by them. The very same tax was demanded from the petitioners under a notice of demand. Firstly, they ought to have paid the tax in advance which they never did. Secondly, the demand notice was issued and again they failed to pay the tax. In view of sections 12 and 12-B of the Act, decidedly that was the amount due under the Act from such a dealer. As such, upon the plain language of section 13(3), the amount due was recoverable as if it were a fine imposed by a Magistrate. Thus, the said ruling relied upon by the learned counsel will not be of any help to the petitioners. An assessment order was not required, as under section 12-B, the tax was an amount due under the Act from such dealer. In fact, that was the amount pointed out by the dealer himself as payable by him. Therefore, the order of the learned Magistrate cannot be questioned on this ground that either he did not apply his mind or that he did not see the required documents before issuing the distress warrant. </p><p style="text-align: justify;">4. The learned counsel then pointed out that the warrant issued was vague inasmuch as it did not specify the particular lorry which was to be attached. That was not the requirement of law. Under section 421, the warrant had to specify for the attachment and sale of any movable property belonging to the assessee. It could not be contemplated that the lorry or any other movable property would at all be available for attachment at the time the order was to be served upon the assessee. Therefore, no exception can be taken to the form of the warrant issued. It was rather the correct warrant and provided for all that was required under law to be provided for. </p><p style="text-align: justify;">5. An ingenious argument was raised by the learned counsel for the petitioners with reference to section 421 of the Code of Criminal Procedure. It was stated that the learned Magistrate could not impose a fine exceeding Rs. 5,000 and, therefore, the issue of distress warrant for recovery of Rs. 67,200 by attachment and sale of property was an act beyond the jurisdiction of the Magistrate. For that, the learned counsel relied on a Division Bench case of this Court in Mohanlal Premchand v. Commercial Tax Officer [[1971] 28 S.T.C. 492; (1971) 1 Mys. L.J. 72]. But, that case related to the unamended section 13(3)(b). The language 'notwithstanding anything contained in the Code of Criminal Procedure, 1898' was not there before 1972. That is why, the Division Bench of this Court came to the conclusion that the Magistrate issuing the warrant of distress could not ask for recovery of an amount exceeding his own power to levy fine. The above-noted language used in sub-section (3)(b) rather makes the position clear. The limit imposed by the legislature on the levy of fine will no longer hold goods and the Magistrate would realise the amount 'as if it were a fine imposed by him' notwithstanding that the amount to be recovered is much more than the fine which could be imposed by him. </p><p style="text-align: justify;">6. In this view of the matter, I do not find any defect in the order made by the learned Magistrate. As such, no revision is sustainable against that order. The petition is, therefore, dismissed. </p><p style="text-align: justify;">7. Petition dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[1977]40STC320(Kar)', 'ratiodecidendi' => '', 'respondent' => 'The Commercial Tax Officer, Mysore Circle, Mysore', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ), 'casename_url' => 's-dasappa-company-vs-commercial-officer', 'args' => array( (int) 0 => '371016', (int) 1 => 's-dasappa-company-vs-commercial-officer' ) ) $title_for_layout = 'S Dasappa and Company Vs the Commercial Tax Officer Mysore Circle Mysore - Citation 371016 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '371016', 'acts' => '<a href="/act/62040/karnataka-sales-tax-act-1957-complete-act">Karnataka Sales Tax Act, 1957</a> - Sections 12, 12B, 13(3) and 13(4)', 'appealno' => 'Criminal Revision Petition No. 468 of 1976', 'appellant' => 'S. Dasappa and Company', 'authreffered' => '', 'casename' => 'S. Dasappa and Company Vs. the Commercial Tax Officer, Mysore Circle, Mysore', 'casenote' => ' - COMPANIES ACT, 1956 [C.A. No. 1/1956]. Sections 529 & 529A & State Financial Corporation Act 1951, Section 29: [S.R. Bannurmath & A.N. Venugopala Gowda, JJ] Proceedings under Taking over of assets of the industrial concern in realisation of dues Sale of assets - Applicability of provisions of Section 529 and 529A Held, The Corporation cannot exercise its rights if the assets of the industrial concern, has already vested in the Company Court or if the Official Liquidator had been put in charge of the assets of the industrial concern. If the winding up proceedings are not set in motion, then, there is no legal impediment to the Corporation to take action under Section 29 of the S.F.C. Act, 1951 and permission of Company Court is not required to be obtained. In the absence of commencement of winding up proceedings, the provision of Section 529 and 529A of the Companies Act cannot be made applicable. The action of the Corporation under Section 29 of the S.F.C. Act is lawful. Further, the Corporation took over only the assets and not the management. The money realised by effecting sale under Sub-Section (2) of Section 29, cannot be apportioned or ordered to be paid to the workmen of the industrial concern, when the industrial concern is not under the winding up proceedings, in terms of the provisions under the Companies Act. The Corporation cannot be held liable either jointly or severally to pay the closure compensation or other claims of the workmen. The industry is liable to pay the wages of the lockout period and the closure compensation to the workmen. -- STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. -- STATE FINANCIAL CORPORATIONS ACT, 1951. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. - As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. Secondly, the demand notice was issued and again they failed to pay the tax.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'S.D. Chhatre, Adv.', 'counseldef' => 'T.J. Chouta, High Court Government Pleader', 'court' => 'Karnataka', 'court_type' => 'HC', 'decidedon' => '1977-02-02', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => 'D.B. Lal, J.', 'judgement' => 'ORDER<p>Lal, J. </p><p>1. This is a criminal revision under section 13(4) of the <a>Karnataka Sales Tax Act, 1957</a> (hereinafter to be referred to as the 'Act'), and it arises in the following circumstances : </p><p>M/s. S. Dasappa and Company is said to be a partnership firm having their place of business at Santepet, Kollegal, District Mysore. It is not disputed that they are assessees under the Act and, accordingly, under sections 12 and 12-B of the Act, they were liable to submit returns for assessment. They were also liable to pay the tax in advance. It is again beyond the pale of controversy that M/s. S. Dasappa and Company, the present petitioners, submitted the annual return under section 12 in form 4, but did not pay any tax in advance. The Commercial Tax Officer issued a notice of demand under form 3-A under rule 18(1)(c) made under the Act. Despite that notice of demand, the tax was not paid. Accordingly, it was considered by the department that the tax was an amount due under the Act from such dealer. Under section 13(3)(b), the Commercial Tax Officer filed an application before the Magistrate that the amount be realised as if it were a fine imposed by him. Thereafter, a distress warrant was issued by the Magistrate and a lorry belonging to the petitioners was attached. Against that order passed by learned Magistrate, the present revision is filed under sub-section (4) of section 13 of the Act. </p><p>2. The learned counsel for the petitioners contended that before issuing a distress warrant, the Magistrate was required to issue a notice to show cause. These is no requirement for such a prior notice under section 421 of the Code of Criminal Procedure. Similarly, there is no provision for a prior notice to show cause under section 13(4) of the Act. Therefore, the order of the learned Magistrate cannot be struck down merely, because he did not issue a notice to show cause. The petitioners have also submitted a return in form 4 and, on the basis of that return, the sales tax due in a sum of Rs. 67,200 was demanded. The records of the Commercial Tax Officer is brought for a perusal of the court by the learned State Public Prosecutor and from that record it is evident that the said return was filed by the petitioners and under a calculation made on the basis of their return, a sum of Rs. 67,200 was payable as sales tax. In fact, the petitioners have themselves mentioned that amount as payable by them for sales tax. Since under sections 12 and 12-B of the Act, the tax was payable in advance and the same was not paid, the demand notice under form 3-A was issued. In these circumstances, even principles of natural justice never required that a prior notice to show cause should have been given before sending a warrant for attachment and sale of any movable property belonging to the assessee. </p><p>3. It is next contended by the learned counsel that there was no assessment order and the learned Magistrate was required to see the assessment order before he could proceed to issue the warrant for attachment and sale of any movable property. For this the learned counsel relied on a decision in Ganesh Narayana Hedge v. Commercial Tax Officer, Sirsi [[1976] 37 S.T.C. 567; (1976) 1 Kar. L.J. 233]. But the facts of that case were different and that ruling would have no effect in the present case. As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. That apart, no material was produced before the Magistrate even stating as to whether the petitioners were the assessees and as to whether any tax could at all be realised from them. The Magistrate did not apply his mind and issued the distress warrant. In these circumstances, it was held that the order of the Magistrate was illegal and could not be sustained. The position in the instant case is entirely different. The file of the Commercial Tax Officer does indicate that the petitioners themselves filed a return and calculated the amount of tax payable by them. The very same tax was demanded from the petitioners under a notice of demand. Firstly, they ought to have paid the tax in advance which they never did. Secondly, the demand notice was issued and again they failed to pay the tax. In view of sections 12 and 12-B of the Act, decidedly that was the amount due under the Act from such a dealer. As such, upon the plain language of section 13(3), the amount due was recoverable as if it were a fine imposed by a Magistrate. Thus, the said ruling relied upon by the learned counsel will not be of any help to the petitioners. An assessment order was not required, as under section 12-B, the tax was an amount due under the Act from such dealer. In fact, that was the amount pointed out by the dealer himself as payable by him. Therefore, the order of the learned Magistrate cannot be questioned on this ground that either he did not apply his mind or that he did not see the required documents before issuing the distress warrant. </p><p>4. The learned counsel then pointed out that the warrant issued was vague inasmuch as it did not specify the particular lorry which was to be attached. That was not the requirement of law. Under section 421, the warrant had to specify for the attachment and sale of any movable property belonging to the assessee. It could not be contemplated that the lorry or any other movable property would at all be available for attachment at the time the order was to be served upon the assessee. Therefore, no exception can be taken to the form of the warrant issued. It was rather the correct warrant and provided for all that was required under law to be provided for. </p><p>5. An ingenious argument was raised by the learned counsel for the petitioners with reference to section 421 of the Code of Criminal Procedure. It was stated that the learned Magistrate could not impose a fine exceeding Rs. 5,000 and, therefore, the issue of distress warrant for recovery of Rs. 67,200 by attachment and sale of property was an act beyond the jurisdiction of the Magistrate. For that, the learned counsel relied on a Division Bench case of this Court in Mohanlal Premchand v. Commercial Tax Officer [[1971] 28 S.T.C. 492; (1971) 1 Mys. L.J. 72]. But, that case related to the unamended section 13(3)(b). The language 'notwithstanding anything contained in the Code of Criminal Procedure, 1898' was not there before 1972. That is why, the Division Bench of this Court came to the conclusion that the Magistrate issuing the warrant of distress could not ask for recovery of an amount exceeding his own power to levy fine. The above-noted language used in sub-section (3)(b) rather makes the position clear. The limit imposed by the legislature on the levy of fine will no longer hold goods and the Magistrate would realise the amount 'as if it were a fine imposed by him' notwithstanding that the amount to be recovered is much more than the fine which could be imposed by him. </p><p>6. In this view of the matter, I do not find any defect in the order made by the learned Magistrate. As such, no revision is sustainable against that order. The petition is, therefore, dismissed. </p><p>7. Petition dismissed. <p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[1977]40STC320(Kar)', 'ratiodecidendi' => '', 'respondent' => 'The Commercial Tax Officer, Mysore Circle, Mysore', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ) $casename_url = 's-dasappa-company-vs-commercial-officer' $args = array( (int) 0 => '371016', (int) 1 => 's-dasappa-company-vs-commercial-officer' ) $url = 'https://sooperkanoon.com/case/amp/371016/s-dasappa-company-vs-commercial-officer' $ctype = ' High Court'include - APP/View/Case/amp.ctp, line 123 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'S Dasappa and Company Vs the Commercial Tax Officer Mysore Circle Mysore - Citation 371016 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '371016', 'acts' => '<a href="/act/62040/karnataka-sales-tax-act-1957-complete-act">Karnataka Sales Tax Act, 1957</a> - Sections 12, 12B, 13(3) and 13(4)', 'appealno' => 'Criminal Revision Petition No. 468 of 1976', 'appellant' => 'S. Dasappa and Company', 'authreffered' => '', 'casename' => 'S. Dasappa and Company Vs. the Commercial Tax Officer, Mysore Circle, Mysore', 'casenote' => ' - COMPANIES ACT, 1956 [C.A. No. 1/1956]. Sections 529 & 529A & State Financial Corporation Act 1951, Section 29: [S.R. Bannurmath & A.N. Venugopala Gowda, JJ] Proceedings under Taking over of assets of the industrial concern in realisation of dues Sale of assets - Applicability of provisions of Section 529 and 529A Held, The Corporation cannot exercise its rights if the assets of the industrial concern, has already vested in the Company Court or if the Official Liquidator had been put in charge of the assets of the industrial concern. If the winding up proceedings are not set in motion, then, there is no legal impediment to the Corporation to take action under Section 29 of the S.F.C. Act, 1951 and permission of Company Court is not required to be obtained. In the absence of commencement of winding up proceedings, the provision of Section 529 and 529A of the Companies Act cannot be made applicable. The action of the Corporation under Section 29 of the S.F.C. Act is lawful. Further, the Corporation took over only the assets and not the management. The money realised by effecting sale under Sub-Section (2) of Section 29, cannot be apportioned or ordered to be paid to the workmen of the industrial concern, when the industrial concern is not under the winding up proceedings, in terms of the provisions under the Companies Act. The Corporation cannot be held liable either jointly or severally to pay the closure compensation or other claims of the workmen. The industry is liable to pay the wages of the lockout period and the closure compensation to the workmen. -- STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. -- STATE FINANCIAL CORPORATIONS ACT, 1951. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. - As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. Secondly, the demand notice was issued and again they failed to pay the tax.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'S.D. Chhatre, Adv.', 'counseldef' => 'T.J. Chouta, High Court Government Pleader', 'court' => 'Karnataka', 'court_type' => 'HC', 'decidedon' => '1977-02-02', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => 'D.B. Lal, J.', 'judgement' => 'ORDER<p style="text-align: justify;">Lal, J. </p><p style="text-align: justify;">1. This is a criminal revision under section 13(4) of the <a href="/act/62040/karnataka-sales-tax-act-1957-complete-act">Karnataka Sales Tax Act, 1957</a> (hereinafter to be referred to as the 'Act'), and it arises in the following circumstances : </p><p style="text-align: justify;">M/s. S. Dasappa and Company is said to be a partnership firm having their place of business at Santepet, Kollegal, District Mysore. It is not disputed that they are assessees under the Act and, accordingly, under sections 12 and 12-B of the Act, they were liable to submit returns for assessment. They were also liable to pay the tax in advance. It is again beyond the pale of controversy that M/s. S. Dasappa and Company, the present petitioners, submitted the annual return under section 12 in form 4, but did not pay any tax in advance. The Commercial Tax Officer issued a notice of demand under form 3-A under rule 18(1)(c) made under the Act. Despite that notice of demand, the tax was not paid. Accordingly, it was considered by the department that the tax was an amount due under the Act from such dealer. Under section 13(3)(b), the Commercial Tax Officer filed an application before the Magistrate that the amount be realised as if it were a fine imposed by him. Thereafter, a distress warrant was issued by the Magistrate and a lorry belonging to the petitioners was attached. Against that order passed by learned Magistrate, the present revision is filed under sub-section (4) of section 13 of the Act. </p><p style="text-align: justify;">2. The learned counsel for the petitioners contended that before issuing a distress warrant, the Magistrate was required to issue a notice to show cause. These is no requirement for such a prior notice under section 421 of the Code of Criminal Procedure. Similarly, there is no provision for a prior notice to show cause under section 13(4) of the Act. Therefore, the order of the learned Magistrate cannot be struck down merely, because he did not issue a notice to show cause. The petitioners have also submitted a return in form 4 and, on the basis of that return, the sales tax due in a sum of Rs. 67,200 was demanded. The records of the Commercial Tax Officer is brought for a perusal of the court by the learned State Public Prosecutor and from that record it is evident that the said return was filed by the petitioners and under a calculation made on the basis of their return, a sum of Rs. 67,200 was payable as sales tax. In fact, the petitioners have themselves mentioned that amount as payable by them for sales tax. Since under sections 12 and 12-B of the Act, the tax was payable in advance and the same was not paid, the demand notice under form 3-A was issued. In these circumstances, even principles of natural justice never required that a prior notice to show cause should have been given before sending a warrant for attachment and sale of any movable property belonging to the assessee. </p><p style="text-align: justify;">3. It is next contended by the learned counsel that there was no assessment order and the learned Magistrate was required to see the assessment order before he could proceed to issue the warrant for attachment and sale of any movable property. For this the learned counsel relied on a decision in Ganesh Narayana Hedge v. Commercial Tax Officer, Sirsi [[1976] 37 S.T.C. 567; (1976) 1 Kar. L.J. 233]. But the facts of that case were different and that ruling would have no effect in the present case. As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. That apart, no material was produced before the Magistrate even stating as to whether the petitioners were the assessees and as to whether any tax could at all be realised from them. The Magistrate did not apply his mind and issued the distress warrant. In these circumstances, it was held that the order of the Magistrate was illegal and could not be sustained. The position in the instant case is entirely different. The file of the Commercial Tax Officer does indicate that the petitioners themselves filed a return and calculated the amount of tax payable by them. The very same tax was demanded from the petitioners under a notice of demand. Firstly, they ought to have paid the tax in advance which they never did. Secondly, the demand notice was issued and again they failed to pay the tax. In view of sections 12 and 12-B of the Act, decidedly that was the amount due under the Act from such a dealer. As such, upon the plain language of section 13(3), the amount due was recoverable as if it were a fine imposed by a Magistrate. Thus, the said ruling relied upon by the learned counsel will not be of any help to the petitioners. An assessment order was not required, as under section 12-B, the tax was an amount due under the Act from such dealer. In fact, that was the amount pointed out by the dealer himself as payable by him. Therefore, the order of the learned Magistrate cannot be questioned on this ground that either he did not apply his mind or that he did not see the required documents before issuing the distress warrant. </p><p style="text-align: justify;">4. The learned counsel then pointed out that the warrant issued was vague inasmuch as it did not specify the particular lorry which was to be attached. That was not the requirement of law. Under section 421, the warrant had to specify for the attachment and sale of any movable property belonging to the assessee. It could not be contemplated that the lorry or any other movable property would at all be available for attachment at the time the order was to be served upon the assessee. Therefore, no exception can be taken to the form of the warrant issued. It was rather the correct warrant and provided for all that was required under law to be provided for. </p><p style="text-align: justify;">5. An ingenious argument was raised by the learned counsel for the petitioners with reference to section 421 of the Code of Criminal Procedure. It was stated that the learned Magistrate could not impose a fine exceeding Rs. 5,000 and, therefore, the issue of distress warrant for recovery of Rs. 67,200 by attachment and sale of property was an act beyond the jurisdiction of the Magistrate. For that, the learned counsel relied on a Division Bench case of this Court in Mohanlal Premchand v. Commercial Tax Officer [[1971] 28 S.T.C. 492; (1971) 1 Mys. L.J. 72]. But, that case related to the unamended section 13(3)(b). The language 'notwithstanding anything contained in the Code of Criminal Procedure, 1898' was not there before 1972. That is why, the Division Bench of this Court came to the conclusion that the Magistrate issuing the warrant of distress could not ask for recovery of an amount exceeding his own power to levy fine. The above-noted language used in sub-section (3)(b) rather makes the position clear. The limit imposed by the legislature on the levy of fine will no longer hold goods and the Magistrate would realise the amount 'as if it were a fine imposed by him' notwithstanding that the amount to be recovered is much more than the fine which could be imposed by him. </p><p style="text-align: justify;">6. In this view of the matter, I do not find any defect in the order made by the learned Magistrate. As such, no revision is sustainable against that order. The petition is, therefore, dismissed. </p><p style="text-align: justify;">7. Petition dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[1977]40STC320(Kar)', 'ratiodecidendi' => '', 'respondent' => 'The Commercial Tax Officer, Mysore Circle, Mysore', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ), 'casename_url' => 's-dasappa-company-vs-commercial-officer', 'args' => array( (int) 0 => '371016', (int) 1 => 's-dasappa-company-vs-commercial-officer' ) ) $title_for_layout = 'S Dasappa and Company Vs the Commercial Tax Officer Mysore Circle Mysore - Citation 371016 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '371016', 'acts' => '<a href="/act/62040/karnataka-sales-tax-act-1957-complete-act">Karnataka Sales Tax Act, 1957</a> - Sections 12, 12B, 13(3) and 13(4)', 'appealno' => 'Criminal Revision Petition No. 468 of 1976', 'appellant' => 'S. Dasappa and Company', 'authreffered' => '', 'casename' => 'S. Dasappa and Company Vs. the Commercial Tax Officer, Mysore Circle, Mysore', 'casenote' => ' - COMPANIES ACT, 1956 [C.A. No. 1/1956]. Sections 529 & 529A & State Financial Corporation Act 1951, Section 29: [S.R. Bannurmath & A.N. Venugopala Gowda, JJ] Proceedings under Taking over of assets of the industrial concern in realisation of dues Sale of assets - Applicability of provisions of Section 529 and 529A Held, The Corporation cannot exercise its rights if the assets of the industrial concern, has already vested in the Company Court or if the Official Liquidator had been put in charge of the assets of the industrial concern. If the winding up proceedings are not set in motion, then, there is no legal impediment to the Corporation to take action under Section 29 of the S.F.C. Act, 1951 and permission of Company Court is not required to be obtained. In the absence of commencement of winding up proceedings, the provision of Section 529 and 529A of the Companies Act cannot be made applicable. The action of the Corporation under Section 29 of the S.F.C. Act is lawful. Further, the Corporation took over only the assets and not the management. The money realised by effecting sale under Sub-Section (2) of Section 29, cannot be apportioned or ordered to be paid to the workmen of the industrial concern, when the industrial concern is not under the winding up proceedings, in terms of the provisions under the Companies Act. The Corporation cannot be held liable either jointly or severally to pay the closure compensation or other claims of the workmen. The industry is liable to pay the wages of the lockout period and the closure compensation to the workmen. -- STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. -- STATE FINANCIAL CORPORATIONS ACT, 1951. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. - As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. Secondly, the demand notice was issued and again they failed to pay the tax.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'S.D. Chhatre, Adv.', 'counseldef' => 'T.J. Chouta, High Court Government Pleader', 'court' => 'Karnataka', 'court_type' => 'HC', 'decidedon' => '1977-02-02', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => 'D.B. Lal, J.', 'judgement' => 'ORDER<p>Lal, J. </p><p>1. This is a criminal revision under section 13(4) of the <a>Karnataka Sales Tax Act, 1957</a> (hereinafter to be referred to as the 'Act'), and it arises in the following circumstances : </p><p>M/s. S. Dasappa and Company is said to be a partnership firm having their place of business at Santepet, Kollegal, District Mysore. It is not disputed that they are assessees under the Act and, accordingly, under sections 12 and 12-B of the Act, they were liable to submit returns for assessment. They were also liable to pay the tax in advance. It is again beyond the pale of controversy that M/s. S. Dasappa and Company, the present petitioners, submitted the annual return under section 12 in form 4, but did not pay any tax in advance. The Commercial Tax Officer issued a notice of demand under form 3-A under rule 18(1)(c) made under the Act. Despite that notice of demand, the tax was not paid. Accordingly, it was considered by the department that the tax was an amount due under the Act from such dealer. Under section 13(3)(b), the Commercial Tax Officer filed an application before the Magistrate that the amount be realised as if it were a fine imposed by him. Thereafter, a distress warrant was issued by the Magistrate and a lorry belonging to the petitioners was attached. Against that order passed by learned Magistrate, the present revision is filed under sub-section (4) of section 13 of the Act. </p><p>2. The learned counsel for the petitioners contended that before issuing a distress warrant, the Magistrate was required to issue a notice to show cause. These is no requirement for such a prior notice under section 421 of the Code of Criminal Procedure. Similarly, there is no provision for a prior notice to show cause under section 13(4) of the Act. Therefore, the order of the learned Magistrate cannot be struck down merely, because he did not issue a notice to show cause. The petitioners have also submitted a return in form 4 and, on the basis of that return, the sales tax due in a sum of Rs. 67,200 was demanded. The records of the Commercial Tax Officer is brought for a perusal of the court by the learned State Public Prosecutor and from that record it is evident that the said return was filed by the petitioners and under a calculation made on the basis of their return, a sum of Rs. 67,200 was payable as sales tax. In fact, the petitioners have themselves mentioned that amount as payable by them for sales tax. Since under sections 12 and 12-B of the Act, the tax was payable in advance and the same was not paid, the demand notice under form 3-A was issued. In these circumstances, even principles of natural justice never required that a prior notice to show cause should have been given before sending a warrant for attachment and sale of any movable property belonging to the assessee. </p><p>3. It is next contended by the learned counsel that there was no assessment order and the learned Magistrate was required to see the assessment order before he could proceed to issue the warrant for attachment and sale of any movable property. For this the learned counsel relied on a decision in Ganesh Narayana Hedge v. Commercial Tax Officer, Sirsi [[1976] 37 S.T.C. 567; (1976) 1 Kar. L.J. 233]. But the facts of that case were different and that ruling would have no effect in the present case. As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. That apart, no material was produced before the Magistrate even stating as to whether the petitioners were the assessees and as to whether any tax could at all be realised from them. The Magistrate did not apply his mind and issued the distress warrant. In these circumstances, it was held that the order of the Magistrate was illegal and could not be sustained. The position in the instant case is entirely different. The file of the Commercial Tax Officer does indicate that the petitioners themselves filed a return and calculated the amount of tax payable by them. The very same tax was demanded from the petitioners under a notice of demand. Firstly, they ought to have paid the tax in advance which they never did. Secondly, the demand notice was issued and again they failed to pay the tax. In view of sections 12 and 12-B of the Act, decidedly that was the amount due under the Act from such a dealer. As such, upon the plain language of section 13(3), the amount due was recoverable as if it were a fine imposed by a Magistrate. Thus, the said ruling relied upon by the learned counsel will not be of any help to the petitioners. An assessment order was not required, as under section 12-B, the tax was an amount due under the Act from such dealer. In fact, that was the amount pointed out by the dealer himself as payable by him. Therefore, the order of the learned Magistrate cannot be questioned on this ground that either he did not apply his mind or that he did not see the required documents before issuing the distress warrant. </p><p>4. The learned counsel then pointed out that the warrant issued was vague inasmuch as it did not specify the particular lorry which was to be attached. That was not the requirement of law. Under section 421, the warrant had to specify for the attachment and sale of any movable property belonging to the assessee. It could not be contemplated that the lorry or any other movable property would at all be available for attachment at the time the order was to be served upon the assessee. Therefore, no exception can be taken to the form of the warrant issued. It was rather the correct warrant and provided for all that was required under law to be provided for. </p><p>5. An ingenious argument was raised by the learned counsel for the petitioners with reference to section 421 of the Code of Criminal Procedure. It was stated that the learned Magistrate could not impose a fine exceeding Rs. 5,000 and, therefore, the issue of distress warrant for recovery of Rs. 67,200 by attachment and sale of property was an act beyond the jurisdiction of the Magistrate. For that, the learned counsel relied on a Division Bench case of this Court in Mohanlal Premchand v. Commercial Tax Officer [[1971] 28 S.T.C. 492; (1971) 1 Mys. L.J. 72]. But, that case related to the unamended section 13(3)(b). The language 'notwithstanding anything contained in the Code of Criminal Procedure, 1898' was not there before 1972. That is why, the Division Bench of this Court came to the conclusion that the Magistrate issuing the warrant of distress could not ask for recovery of an amount exceeding his own power to levy fine. The above-noted language used in sub-section (3)(b) rather makes the position clear. The limit imposed by the legislature on the levy of fine will no longer hold goods and the Magistrate would realise the amount 'as if it were a fine imposed by him' notwithstanding that the amount to be recovered is much more than the fine which could be imposed by him. </p><p>6. In this view of the matter, I do not find any defect in the order made by the learned Magistrate. As such, no revision is sustainable against that order. The petition is, therefore, dismissed. </p><p>7. Petition dismissed. <p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[1977]40STC320(Kar)', 'ratiodecidendi' => '', 'respondent' => 'The Commercial Tax Officer, Mysore Circle, Mysore', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ) $casename_url = 's-dasappa-company-vs-commercial-officer' $args = array( (int) 0 => '371016', (int) 1 => 's-dasappa-company-vs-commercial-officer' ) $url = 'https://sooperkanoon.com/case/amp/371016/s-dasappa-company-vs-commercial-officer' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>Lal, J. ', (int) 1 => '<p>1. This is a criminal revision under section 13(4) of the <a>Karnataka Sales Tax Act, 1957</a> (hereinafter to be referred to as the 'Act'), and it arises in the following circumstances : ', (int) 2 => '<p>M/s. S. Dasappa and Company is said to be a partnership firm having their place of business at Santepet, Kollegal, District Mysore. It is not disputed that they are assessees under the Act and, accordingly, under sections 12 and 12-B of the Act, they were liable to submit returns for assessment. They were also liable to pay the tax in advance. It is again beyond the pale of controversy that M/s. S. Dasappa and Company, the present petitioners, submitted the annual return under section 12 in form 4, but did not pay any tax in advance. The Commercial Tax Officer issued a notice of demand under form 3-A under rule 18(1)(c) made under the Act. Despite that notice of demand, the tax was not paid. Accordingly, it was considered by the department that the tax was an amount due under the Act from such dealer. Under section 13(3)(b), the Commercial Tax Officer filed an application before the Magistrate that the amount be realised as if it were a fine imposed by him. Thereafter, a distress warrant was issued by the Magistrate and a lorry belonging to the petitioners was attached. Against that order passed by learned Magistrate, the present revision is filed under sub-section (4) of section 13 of the Act. ', (int) 3 => '<p>2. The learned counsel for the petitioners contended that before issuing a distress warrant, the Magistrate was required to issue a notice to show cause. These is no requirement for such a prior notice under section 421 of the Code of Criminal Procedure. Similarly, there is no provision for a prior notice to show cause under section 13(4) of the Act. Therefore, the order of the learned Magistrate cannot be struck down merely, because he did not issue a notice to show cause. The petitioners have also submitted a return in form 4 and, on the basis of that return, the sales tax due in a sum of Rs. 67,200 was demanded. The records of the Commercial Tax Officer is brought for a perusal of the court by the learned State Public Prosecutor and from that record it is evident that the said return was filed by the petitioners and under a calculation made on the basis of their return, a sum of Rs. 67,200 was payable as sales tax. In fact, the petitioners have themselves mentioned that amount as payable by them for sales tax. Since under sections 12 and 12-B of the Act, the tax was payable in advance and the same was not paid, the demand notice under form 3-A was issued. In these circumstances, even principles of natural justice never required that a prior notice to show cause should have been given before sending a warrant for attachment and sale of any movable property belonging to the assessee. ', (int) 4 => '<p>3. It is next contended by the learned counsel that there was no assessment order and the learned Magistrate was required to see the assessment order before he could proceed to issue the warrant for attachment and sale of any movable property. For this the learned counsel relied on a decision in Ganesh Narayana Hedge v. Commercial Tax Officer, Sirsi [[1976] 37 S.T.C. 567; (1976) 1 Kar. L.J. 233]. But the facts of that case were different and that ruling would have no effect in the present case. As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. That apart, no material was produced before the Magistrate even stating as to whether the petitioners were the assessees and as to whether any tax could at all be realised from them. The Magistrate did not apply his mind and issued the distress warrant. In these circumstances, it was held that the order of the Magistrate was illegal and could not be sustained. The position in the instant case is entirely different. The file of the Commercial Tax Officer does indicate that the petitioners themselves filed a return and calculated the amount of tax payable by them. The very same tax was demanded from the petitioners under a notice of demand. Firstly, they ought to have paid the tax in advance which they never did. Secondly, the demand notice was issued and again they failed to pay the tax. In view of sections 12 and 12-B of the Act, decidedly that was the amount due under the Act from such a dealer. As such, upon the plain language of section 13(3), the amount due was recoverable as if it were a fine imposed by a Magistrate. Thus, the said ruling relied upon by the learned counsel will not be of any help to the petitioners. An assessment order was not required, as under section 12-B, the tax was an amount due under the Act from such dealer. In fact, that was the amount pointed out by the dealer himself as payable by him. Therefore, the order of the learned Magistrate cannot be questioned on this ground that either he did not apply his mind or that he did not see the required documents before issuing the distress warrant. ', (int) 5 => '<p>4. The learned counsel then pointed out that the warrant issued was vague inasmuch as it did not specify the particular lorry which was to be attached. That was not the requirement of law. Under section 421, the warrant had to specify for the attachment and sale of any movable property belonging to the assessee. It could not be contemplated that the lorry or any other movable property would at all be available for attachment at the time the order was to be served upon the assessee. Therefore, no exception can be taken to the form of the warrant issued. It was rather the correct warrant and provided for all that was required under law to be provided for. ', (int) 6 => '<p>5. An ingenious argument was raised by the learned counsel for the petitioners with reference to section 421 of the Code of Criminal Procedure. It was stated that the learned Magistrate could not impose a fine exceeding Rs. 5,000 and, therefore, the issue of distress warrant for recovery of Rs. 67,200 by attachment and sale of property was an act beyond the jurisdiction of the Magistrate. For that, the learned counsel relied on a Division Bench case of this Court in Mohanlal Premchand v. Commercial Tax Officer [[1971] 28 S.T.C. 492; (1971) 1 Mys. L.J. 72]. But, that case related to the unamended section 13(3)(b). The language 'notwithstanding anything contained in the Code of Criminal Procedure, 1898' was not there before 1972. That is why, the Division Bench of this Court came to the conclusion that the Magistrate issuing the warrant of distress could not ask for recovery of an amount exceeding his own power to levy fine. The above-noted language used in sub-section (3)(b) rather makes the position clear. The limit imposed by the legislature on the levy of fine will no longer hold goods and the Magistrate would realise the amount 'as if it were a fine imposed by him' notwithstanding that the amount to be recovered is much more than the fine which could be imposed by him. ', (int) 7 => '<p>6. In this view of the matter, I do not find any defect in the order made by the learned Magistrate. As such, no revision is sustainable against that order. The petition is, therefore, dismissed. ', (int) 8 => '<p>7. Petition dismissed. <p>', (int) 9 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 10 $i = (int) 0include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Lal, J.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'S Dasappa and Company Vs the Commercial Tax Officer Mysore Circle Mysore - Citation 371016 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '371016', 'acts' => '<a href="/act/62040/karnataka-sales-tax-act-1957-complete-act">Karnataka Sales Tax Act, 1957</a> - Sections 12, 12B, 13(3) and 13(4)', 'appealno' => 'Criminal Revision Petition No. 468 of 1976', 'appellant' => 'S. Dasappa and Company', 'authreffered' => '', 'casename' => 'S. Dasappa and Company Vs. the Commercial Tax Officer, Mysore Circle, Mysore', 'casenote' => ' - COMPANIES ACT, 1956 [C.A. No. 1/1956]. Sections 529 & 529A & State Financial Corporation Act 1951, Section 29: [S.R. Bannurmath & A.N. Venugopala Gowda, JJ] Proceedings under Taking over of assets of the industrial concern in realisation of dues Sale of assets - Applicability of provisions of Section 529 and 529A Held, The Corporation cannot exercise its rights if the assets of the industrial concern, has already vested in the Company Court or if the Official Liquidator had been put in charge of the assets of the industrial concern. If the winding up proceedings are not set in motion, then, there is no legal impediment to the Corporation to take action under Section 29 of the S.F.C. Act, 1951 and permission of Company Court is not required to be obtained. In the absence of commencement of winding up proceedings, the provision of Section 529 and 529A of the Companies Act cannot be made applicable. The action of the Corporation under Section 29 of the S.F.C. Act is lawful. Further, the Corporation took over only the assets and not the management. The money realised by effecting sale under Sub-Section (2) of Section 29, cannot be apportioned or ordered to be paid to the workmen of the industrial concern, when the industrial concern is not under the winding up proceedings, in terms of the provisions under the Companies Act. The Corporation cannot be held liable either jointly or severally to pay the closure compensation or other claims of the workmen. The industry is liable to pay the wages of the lockout period and the closure compensation to the workmen. -- STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. -- STATE FINANCIAL CORPORATIONS ACT, 1951. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. - As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. Secondly, the demand notice was issued and again they failed to pay the tax.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'S.D. Chhatre, Adv.', 'counseldef' => 'T.J. Chouta, High Court Government Pleader', 'court' => 'Karnataka', 'court_type' => 'HC', 'decidedon' => '1977-02-02', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => 'D.B. Lal, J.', 'judgement' => 'ORDER<p style="text-align: justify;">Lal, J. </p><p style="text-align: justify;">1. This is a criminal revision under section 13(4) of the <a href="/act/62040/karnataka-sales-tax-act-1957-complete-act">Karnataka Sales Tax Act, 1957</a> (hereinafter to be referred to as the 'Act'), and it arises in the following circumstances : </p><p style="text-align: justify;">M/s. S. Dasappa and Company is said to be a partnership firm having their place of business at Santepet, Kollegal, District Mysore. It is not disputed that they are assessees under the Act and, accordingly, under sections 12 and 12-B of the Act, they were liable to submit returns for assessment. They were also liable to pay the tax in advance. It is again beyond the pale of controversy that M/s. S. Dasappa and Company, the present petitioners, submitted the annual return under section 12 in form 4, but did not pay any tax in advance. The Commercial Tax Officer issued a notice of demand under form 3-A under rule 18(1)(c) made under the Act. Despite that notice of demand, the tax was not paid. Accordingly, it was considered by the department that the tax was an amount due under the Act from such dealer. Under section 13(3)(b), the Commercial Tax Officer filed an application before the Magistrate that the amount be realised as if it were a fine imposed by him. Thereafter, a distress warrant was issued by the Magistrate and a lorry belonging to the petitioners was attached. Against that order passed by learned Magistrate, the present revision is filed under sub-section (4) of section 13 of the Act. </p><p style="text-align: justify;">2. The learned counsel for the petitioners contended that before issuing a distress warrant, the Magistrate was required to issue a notice to show cause. These is no requirement for such a prior notice under section 421 of the Code of Criminal Procedure. Similarly, there is no provision for a prior notice to show cause under section 13(4) of the Act. Therefore, the order of the learned Magistrate cannot be struck down merely, because he did not issue a notice to show cause. The petitioners have also submitted a return in form 4 and, on the basis of that return, the sales tax due in a sum of Rs. 67,200 was demanded. The records of the Commercial Tax Officer is brought for a perusal of the court by the learned State Public Prosecutor and from that record it is evident that the said return was filed by the petitioners and under a calculation made on the basis of their return, a sum of Rs. 67,200 was payable as sales tax. In fact, the petitioners have themselves mentioned that amount as payable by them for sales tax. Since under sections 12 and 12-B of the Act, the tax was payable in advance and the same was not paid, the demand notice under form 3-A was issued. In these circumstances, even principles of natural justice never required that a prior notice to show cause should have been given before sending a warrant for attachment and sale of any movable property belonging to the assessee. </p><p style="text-align: justify;">3. It is next contended by the learned counsel that there was no assessment order and the learned Magistrate was required to see the assessment order before he could proceed to issue the warrant for attachment and sale of any movable property. For this the learned counsel relied on a decision in Ganesh Narayana Hedge v. Commercial Tax Officer, Sirsi [[1976] 37 S.T.C. 567; (1976) 1 Kar. L.J. 233]. But the facts of that case were different and that ruling would have no effect in the present case. As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. That apart, no material was produced before the Magistrate even stating as to whether the petitioners were the assessees and as to whether any tax could at all be realised from them. The Magistrate did not apply his mind and issued the distress warrant. In these circumstances, it was held that the order of the Magistrate was illegal and could not be sustained. The position in the instant case is entirely different. The file of the Commercial Tax Officer does indicate that the petitioners themselves filed a return and calculated the amount of tax payable by them. The very same tax was demanded from the petitioners under a notice of demand. Firstly, they ought to have paid the tax in advance which they never did. Secondly, the demand notice was issued and again they failed to pay the tax. In view of sections 12 and 12-B of the Act, decidedly that was the amount due under the Act from such a dealer. As such, upon the plain language of section 13(3), the amount due was recoverable as if it were a fine imposed by a Magistrate. Thus, the said ruling relied upon by the learned counsel will not be of any help to the petitioners. An assessment order was not required, as under section 12-B, the tax was an amount due under the Act from such dealer. In fact, that was the amount pointed out by the dealer himself as payable by him. Therefore, the order of the learned Magistrate cannot be questioned on this ground that either he did not apply his mind or that he did not see the required documents before issuing the distress warrant. </p><p style="text-align: justify;">4. The learned counsel then pointed out that the warrant issued was vague inasmuch as it did not specify the particular lorry which was to be attached. That was not the requirement of law. Under section 421, the warrant had to specify for the attachment and sale of any movable property belonging to the assessee. It could not be contemplated that the lorry or any other movable property would at all be available for attachment at the time the order was to be served upon the assessee. Therefore, no exception can be taken to the form of the warrant issued. It was rather the correct warrant and provided for all that was required under law to be provided for. </p><p style="text-align: justify;">5. An ingenious argument was raised by the learned counsel for the petitioners with reference to section 421 of the Code of Criminal Procedure. It was stated that the learned Magistrate could not impose a fine exceeding Rs. 5,000 and, therefore, the issue of distress warrant for recovery of Rs. 67,200 by attachment and sale of property was an act beyond the jurisdiction of the Magistrate. For that, the learned counsel relied on a Division Bench case of this Court in Mohanlal Premchand v. Commercial Tax Officer [[1971] 28 S.T.C. 492; (1971) 1 Mys. L.J. 72]. But, that case related to the unamended section 13(3)(b). The language 'notwithstanding anything contained in the Code of Criminal Procedure, 1898' was not there before 1972. That is why, the Division Bench of this Court came to the conclusion that the Magistrate issuing the warrant of distress could not ask for recovery of an amount exceeding his own power to levy fine. The above-noted language used in sub-section (3)(b) rather makes the position clear. The limit imposed by the legislature on the levy of fine will no longer hold goods and the Magistrate would realise the amount 'as if it were a fine imposed by him' notwithstanding that the amount to be recovered is much more than the fine which could be imposed by him. </p><p style="text-align: justify;">6. In this view of the matter, I do not find any defect in the order made by the learned Magistrate. As such, no revision is sustainable against that order. The petition is, therefore, dismissed. </p><p style="text-align: justify;">7. Petition dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[1977]40STC320(Kar)', 'ratiodecidendi' => '', 'respondent' => 'The Commercial Tax Officer, Mysore Circle, Mysore', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ), 'casename_url' => 's-dasappa-company-vs-commercial-officer', 'args' => array( (int) 0 => '371016', (int) 1 => 's-dasappa-company-vs-commercial-officer' ) ) $title_for_layout = 'S Dasappa and Company Vs the Commercial Tax Officer Mysore Circle Mysore - Citation 371016 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '371016', 'acts' => '<a href="/act/62040/karnataka-sales-tax-act-1957-complete-act">Karnataka Sales Tax Act, 1957</a> - Sections 12, 12B, 13(3) and 13(4)', 'appealno' => 'Criminal Revision Petition No. 468 of 1976', 'appellant' => 'S. Dasappa and Company', 'authreffered' => '', 'casename' => 'S. Dasappa and Company Vs. the Commercial Tax Officer, Mysore Circle, Mysore', 'casenote' => ' - COMPANIES ACT, 1956 [C.A. No. 1/1956]. Sections 529 & 529A & State Financial Corporation Act 1951, Section 29: [S.R. Bannurmath & A.N. Venugopala Gowda, JJ] Proceedings under Taking over of assets of the industrial concern in realisation of dues Sale of assets - Applicability of provisions of Section 529 and 529A Held, The Corporation cannot exercise its rights if the assets of the industrial concern, has already vested in the Company Court or if the Official Liquidator had been put in charge of the assets of the industrial concern. If the winding up proceedings are not set in motion, then, there is no legal impediment to the Corporation to take action under Section 29 of the S.F.C. Act, 1951 and permission of Company Court is not required to be obtained. In the absence of commencement of winding up proceedings, the provision of Section 529 and 529A of the Companies Act cannot be made applicable. The action of the Corporation under Section 29 of the S.F.C. Act is lawful. Further, the Corporation took over only the assets and not the management. The money realised by effecting sale under Sub-Section (2) of Section 29, cannot be apportioned or ordered to be paid to the workmen of the industrial concern, when the industrial concern is not under the winding up proceedings, in terms of the provisions under the Companies Act. The Corporation cannot be held liable either jointly or severally to pay the closure compensation or other claims of the workmen. The industry is liable to pay the wages of the lockout period and the closure compensation to the workmen. -- STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. -- STATE FINANCIAL CORPORATIONS ACT, 1951. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. - As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. Secondly, the demand notice was issued and again they failed to pay the tax.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'S.D. Chhatre, Adv.', 'counseldef' => 'T.J. Chouta, High Court Government Pleader', 'court' => 'Karnataka', 'court_type' => 'HC', 'decidedon' => '1977-02-02', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => 'D.B. Lal, J.', 'judgement' => 'ORDER<p>Lal, J. </p><p>1. This is a criminal revision under section 13(4) of the <a>Karnataka Sales Tax Act, 1957</a> (hereinafter to be referred to as the 'Act'), and it arises in the following circumstances : </p><p>M/s. S. Dasappa and Company is said to be a partnership firm having their place of business at Santepet, Kollegal, District Mysore. It is not disputed that they are assessees under the Act and, accordingly, under sections 12 and 12-B of the Act, they were liable to submit returns for assessment. They were also liable to pay the tax in advance. It is again beyond the pale of controversy that M/s. S. Dasappa and Company, the present petitioners, submitted the annual return under section 12 in form 4, but did not pay any tax in advance. The Commercial Tax Officer issued a notice of demand under form 3-A under rule 18(1)(c) made under the Act. Despite that notice of demand, the tax was not paid. Accordingly, it was considered by the department that the tax was an amount due under the Act from such dealer. Under section 13(3)(b), the Commercial Tax Officer filed an application before the Magistrate that the amount be realised as if it were a fine imposed by him. Thereafter, a distress warrant was issued by the Magistrate and a lorry belonging to the petitioners was attached. Against that order passed by learned Magistrate, the present revision is filed under sub-section (4) of section 13 of the Act. </p><p>2. The learned counsel for the petitioners contended that before issuing a distress warrant, the Magistrate was required to issue a notice to show cause. These is no requirement for such a prior notice under section 421 of the Code of Criminal Procedure. Similarly, there is no provision for a prior notice to show cause under section 13(4) of the Act. Therefore, the order of the learned Magistrate cannot be struck down merely, because he did not issue a notice to show cause. The petitioners have also submitted a return in form 4 and, on the basis of that return, the sales tax due in a sum of Rs. 67,200 was demanded. The records of the Commercial Tax Officer is brought for a perusal of the court by the learned State Public Prosecutor and from that record it is evident that the said return was filed by the petitioners and under a calculation made on the basis of their return, a sum of Rs. 67,200 was payable as sales tax. In fact, the petitioners have themselves mentioned that amount as payable by them for sales tax. Since under sections 12 and 12-B of the Act, the tax was payable in advance and the same was not paid, the demand notice under form 3-A was issued. In these circumstances, even principles of natural justice never required that a prior notice to show cause should have been given before sending a warrant for attachment and sale of any movable property belonging to the assessee. </p><p>3. It is next contended by the learned counsel that there was no assessment order and the learned Magistrate was required to see the assessment order before he could proceed to issue the warrant for attachment and sale of any movable property. For this the learned counsel relied on a decision in Ganesh Narayana Hedge v. Commercial Tax Officer, Sirsi [[1976] 37 S.T.C. 567; (1976) 1 Kar. L.J. 233]. But the facts of that case were different and that ruling would have no effect in the present case. As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. That apart, no material was produced before the Magistrate even stating as to whether the petitioners were the assessees and as to whether any tax could at all be realised from them. The Magistrate did not apply his mind and issued the distress warrant. In these circumstances, it was held that the order of the Magistrate was illegal and could not be sustained. The position in the instant case is entirely different. The file of the Commercial Tax Officer does indicate that the petitioners themselves filed a return and calculated the amount of tax payable by them. The very same tax was demanded from the petitioners under a notice of demand. Firstly, they ought to have paid the tax in advance which they never did. Secondly, the demand notice was issued and again they failed to pay the tax. In view of sections 12 and 12-B of the Act, decidedly that was the amount due under the Act from such a dealer. As such, upon the plain language of section 13(3), the amount due was recoverable as if it were a fine imposed by a Magistrate. Thus, the said ruling relied upon by the learned counsel will not be of any help to the petitioners. An assessment order was not required, as under section 12-B, the tax was an amount due under the Act from such dealer. In fact, that was the amount pointed out by the dealer himself as payable by him. Therefore, the order of the learned Magistrate cannot be questioned on this ground that either he did not apply his mind or that he did not see the required documents before issuing the distress warrant. </p><p>4. The learned counsel then pointed out that the warrant issued was vague inasmuch as it did not specify the particular lorry which was to be attached. That was not the requirement of law. Under section 421, the warrant had to specify for the attachment and sale of any movable property belonging to the assessee. It could not be contemplated that the lorry or any other movable property would at all be available for attachment at the time the order was to be served upon the assessee. Therefore, no exception can be taken to the form of the warrant issued. It was rather the correct warrant and provided for all that was required under law to be provided for. </p><p>5. An ingenious argument was raised by the learned counsel for the petitioners with reference to section 421 of the Code of Criminal Procedure. It was stated that the learned Magistrate could not impose a fine exceeding Rs. 5,000 and, therefore, the issue of distress warrant for recovery of Rs. 67,200 by attachment and sale of property was an act beyond the jurisdiction of the Magistrate. For that, the learned counsel relied on a Division Bench case of this Court in Mohanlal Premchand v. Commercial Tax Officer [[1971] 28 S.T.C. 492; (1971) 1 Mys. L.J. 72]. But, that case related to the unamended section 13(3)(b). The language 'notwithstanding anything contained in the Code of Criminal Procedure, 1898' was not there before 1972. That is why, the Division Bench of this Court came to the conclusion that the Magistrate issuing the warrant of distress could not ask for recovery of an amount exceeding his own power to levy fine. The above-noted language used in sub-section (3)(b) rather makes the position clear. The limit imposed by the legislature on the levy of fine will no longer hold goods and the Magistrate would realise the amount 'as if it were a fine imposed by him' notwithstanding that the amount to be recovered is much more than the fine which could be imposed by him. </p><p>6. In this view of the matter, I do not find any defect in the order made by the learned Magistrate. As such, no revision is sustainable against that order. The petition is, therefore, dismissed. </p><p>7. Petition dismissed. <p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[1977]40STC320(Kar)', 'ratiodecidendi' => '', 'respondent' => 'The Commercial Tax Officer, Mysore Circle, Mysore', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ) $casename_url = 's-dasappa-company-vs-commercial-officer' $args = array( (int) 0 => '371016', (int) 1 => 's-dasappa-company-vs-commercial-officer' ) $url = 'https://sooperkanoon.com/case/amp/371016/s-dasappa-company-vs-commercial-officer' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>Lal, J. ', (int) 1 => '<p>1. This is a criminal revision under section 13(4) of the <a>Karnataka Sales Tax Act, 1957</a> (hereinafter to be referred to as the 'Act'), and it arises in the following circumstances : ', (int) 2 => '<p>M/s. S. Dasappa and Company is said to be a partnership firm having their place of business at Santepet, Kollegal, District Mysore. It is not disputed that they are assessees under the Act and, accordingly, under sections 12 and 12-B of the Act, they were liable to submit returns for assessment. They were also liable to pay the tax in advance. It is again beyond the pale of controversy that M/s. S. Dasappa and Company, the present petitioners, submitted the annual return under section 12 in form 4, but did not pay any tax in advance. The Commercial Tax Officer issued a notice of demand under form 3-A under rule 18(1)(c) made under the Act. Despite that notice of demand, the tax was not paid. Accordingly, it was considered by the department that the tax was an amount due under the Act from such dealer. Under section 13(3)(b), the Commercial Tax Officer filed an application before the Magistrate that the amount be realised as if it were a fine imposed by him. Thereafter, a distress warrant was issued by the Magistrate and a lorry belonging to the petitioners was attached. Against that order passed by learned Magistrate, the present revision is filed under sub-section (4) of section 13 of the Act. ', (int) 3 => '<p>2. The learned counsel for the petitioners contended that before issuing a distress warrant, the Magistrate was required to issue a notice to show cause. These is no requirement for such a prior notice under section 421 of the Code of Criminal Procedure. Similarly, there is no provision for a prior notice to show cause under section 13(4) of the Act. Therefore, the order of the learned Magistrate cannot be struck down merely, because he did not issue a notice to show cause. The petitioners have also submitted a return in form 4 and, on the basis of that return, the sales tax due in a sum of Rs. 67,200 was demanded. The records of the Commercial Tax Officer is brought for a perusal of the court by the learned State Public Prosecutor and from that record it is evident that the said return was filed by the petitioners and under a calculation made on the basis of their return, a sum of Rs. 67,200 was payable as sales tax. In fact, the petitioners have themselves mentioned that amount as payable by them for sales tax. Since under sections 12 and 12-B of the Act, the tax was payable in advance and the same was not paid, the demand notice under form 3-A was issued. In these circumstances, even principles of natural justice never required that a prior notice to show cause should have been given before sending a warrant for attachment and sale of any movable property belonging to the assessee. ', (int) 4 => '<p>3. It is next contended by the learned counsel that there was no assessment order and the learned Magistrate was required to see the assessment order before he could proceed to issue the warrant for attachment and sale of any movable property. For this the learned counsel relied on a decision in Ganesh Narayana Hedge v. Commercial Tax Officer, Sirsi [[1976] 37 S.T.C. 567; (1976) 1 Kar. L.J. 233]. But the facts of that case were different and that ruling would have no effect in the present case. As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. That apart, no material was produced before the Magistrate even stating as to whether the petitioners were the assessees and as to whether any tax could at all be realised from them. The Magistrate did not apply his mind and issued the distress warrant. In these circumstances, it was held that the order of the Magistrate was illegal and could not be sustained. The position in the instant case is entirely different. The file of the Commercial Tax Officer does indicate that the petitioners themselves filed a return and calculated the amount of tax payable by them. The very same tax was demanded from the petitioners under a notice of demand. Firstly, they ought to have paid the tax in advance which they never did. Secondly, the demand notice was issued and again they failed to pay the tax. In view of sections 12 and 12-B of the Act, decidedly that was the amount due under the Act from such a dealer. As such, upon the plain language of section 13(3), the amount due was recoverable as if it were a fine imposed by a Magistrate. Thus, the said ruling relied upon by the learned counsel will not be of any help to the petitioners. An assessment order was not required, as under section 12-B, the tax was an amount due under the Act from such dealer. In fact, that was the amount pointed out by the dealer himself as payable by him. Therefore, the order of the learned Magistrate cannot be questioned on this ground that either he did not apply his mind or that he did not see the required documents before issuing the distress warrant. ', (int) 5 => '<p>4. The learned counsel then pointed out that the warrant issued was vague inasmuch as it did not specify the particular lorry which was to be attached. That was not the requirement of law. Under section 421, the warrant had to specify for the attachment and sale of any movable property belonging to the assessee. It could not be contemplated that the lorry or any other movable property would at all be available for attachment at the time the order was to be served upon the assessee. Therefore, no exception can be taken to the form of the warrant issued. It was rather the correct warrant and provided for all that was required under law to be provided for. ', (int) 6 => '<p>5. An ingenious argument was raised by the learned counsel for the petitioners with reference to section 421 of the Code of Criminal Procedure. It was stated that the learned Magistrate could not impose a fine exceeding Rs. 5,000 and, therefore, the issue of distress warrant for recovery of Rs. 67,200 by attachment and sale of property was an act beyond the jurisdiction of the Magistrate. For that, the learned counsel relied on a Division Bench case of this Court in Mohanlal Premchand v. Commercial Tax Officer [[1971] 28 S.T.C. 492; (1971) 1 Mys. L.J. 72]. But, that case related to the unamended section 13(3)(b). The language 'notwithstanding anything contained in the Code of Criminal Procedure, 1898' was not there before 1972. That is why, the Division Bench of this Court came to the conclusion that the Magistrate issuing the warrant of distress could not ask for recovery of an amount exceeding his own power to levy fine. The above-noted language used in sub-section (3)(b) rather makes the position clear. The limit imposed by the legislature on the levy of fine will no longer hold goods and the Magistrate would realise the amount 'as if it were a fine imposed by him' notwithstanding that the amount to be recovered is much more than the fine which could be imposed by him. ', (int) 7 => '<p>6. In this view of the matter, I do not find any defect in the order made by the learned Magistrate. As such, no revision is sustainable against that order. The petition is, therefore, dismissed. ', (int) 8 => '<p>7. Petition dismissed. <p>', (int) 9 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 10 $i = (int) 1include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
1. This is a criminal revision under section 13(4) of the Karnataka Sales Tax Act, 1957 (hereinafter to be referred to as the 'Act'), and it arises in the following circumstances :
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'S Dasappa and Company Vs the Commercial Tax Officer Mysore Circle Mysore - Citation 371016 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '371016', 'acts' => '<a href="/act/62040/karnataka-sales-tax-act-1957-complete-act">Karnataka Sales Tax Act, 1957</a> - Sections 12, 12B, 13(3) and 13(4)', 'appealno' => 'Criminal Revision Petition No. 468 of 1976', 'appellant' => 'S. Dasappa and Company', 'authreffered' => '', 'casename' => 'S. Dasappa and Company Vs. the Commercial Tax Officer, Mysore Circle, Mysore', 'casenote' => ' - COMPANIES ACT, 1956 [C.A. No. 1/1956]. Sections 529 & 529A & State Financial Corporation Act 1951, Section 29: [S.R. Bannurmath & A.N. Venugopala Gowda, JJ] Proceedings under Taking over of assets of the industrial concern in realisation of dues Sale of assets - Applicability of provisions of Section 529 and 529A Held, The Corporation cannot exercise its rights if the assets of the industrial concern, has already vested in the Company Court or if the Official Liquidator had been put in charge of the assets of the industrial concern. If the winding up proceedings are not set in motion, then, there is no legal impediment to the Corporation to take action under Section 29 of the S.F.C. Act, 1951 and permission of Company Court is not required to be obtained. In the absence of commencement of winding up proceedings, the provision of Section 529 and 529A of the Companies Act cannot be made applicable. The action of the Corporation under Section 29 of the S.F.C. Act is lawful. Further, the Corporation took over only the assets and not the management. The money realised by effecting sale under Sub-Section (2) of Section 29, cannot be apportioned or ordered to be paid to the workmen of the industrial concern, when the industrial concern is not under the winding up proceedings, in terms of the provisions under the Companies Act. The Corporation cannot be held liable either jointly or severally to pay the closure compensation or other claims of the workmen. The industry is liable to pay the wages of the lockout period and the closure compensation to the workmen. -- STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. -- STATE FINANCIAL CORPORATIONS ACT, 1951. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. - As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. Secondly, the demand notice was issued and again they failed to pay the tax.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'S.D. Chhatre, Adv.', 'counseldef' => 'T.J. Chouta, High Court Government Pleader', 'court' => 'Karnataka', 'court_type' => 'HC', 'decidedon' => '1977-02-02', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => 'D.B. Lal, J.', 'judgement' => 'ORDER<p style="text-align: justify;">Lal, J. </p><p style="text-align: justify;">1. This is a criminal revision under section 13(4) of the <a href="/act/62040/karnataka-sales-tax-act-1957-complete-act">Karnataka Sales Tax Act, 1957</a> (hereinafter to be referred to as the 'Act'), and it arises in the following circumstances : </p><p style="text-align: justify;">M/s. S. Dasappa and Company is said to be a partnership firm having their place of business at Santepet, Kollegal, District Mysore. It is not disputed that they are assessees under the Act and, accordingly, under sections 12 and 12-B of the Act, they were liable to submit returns for assessment. They were also liable to pay the tax in advance. It is again beyond the pale of controversy that M/s. S. Dasappa and Company, the present petitioners, submitted the annual return under section 12 in form 4, but did not pay any tax in advance. The Commercial Tax Officer issued a notice of demand under form 3-A under rule 18(1)(c) made under the Act. Despite that notice of demand, the tax was not paid. Accordingly, it was considered by the department that the tax was an amount due under the Act from such dealer. Under section 13(3)(b), the Commercial Tax Officer filed an application before the Magistrate that the amount be realised as if it were a fine imposed by him. Thereafter, a distress warrant was issued by the Magistrate and a lorry belonging to the petitioners was attached. Against that order passed by learned Magistrate, the present revision is filed under sub-section (4) of section 13 of the Act. </p><p style="text-align: justify;">2. The learned counsel for the petitioners contended that before issuing a distress warrant, the Magistrate was required to issue a notice to show cause. These is no requirement for such a prior notice under section 421 of the Code of Criminal Procedure. Similarly, there is no provision for a prior notice to show cause under section 13(4) of the Act. Therefore, the order of the learned Magistrate cannot be struck down merely, because he did not issue a notice to show cause. The petitioners have also submitted a return in form 4 and, on the basis of that return, the sales tax due in a sum of Rs. 67,200 was demanded. The records of the Commercial Tax Officer is brought for a perusal of the court by the learned State Public Prosecutor and from that record it is evident that the said return was filed by the petitioners and under a calculation made on the basis of their return, a sum of Rs. 67,200 was payable as sales tax. In fact, the petitioners have themselves mentioned that amount as payable by them for sales tax. Since under sections 12 and 12-B of the Act, the tax was payable in advance and the same was not paid, the demand notice under form 3-A was issued. In these circumstances, even principles of natural justice never required that a prior notice to show cause should have been given before sending a warrant for attachment and sale of any movable property belonging to the assessee. </p><p style="text-align: justify;">3. It is next contended by the learned counsel that there was no assessment order and the learned Magistrate was required to see the assessment order before he could proceed to issue the warrant for attachment and sale of any movable property. For this the learned counsel relied on a decision in Ganesh Narayana Hedge v. Commercial Tax Officer, Sirsi [[1976] 37 S.T.C. 567; (1976) 1 Kar. L.J. 233]. But the facts of that case were different and that ruling would have no effect in the present case. As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. That apart, no material was produced before the Magistrate even stating as to whether the petitioners were the assessees and as to whether any tax could at all be realised from them. The Magistrate did not apply his mind and issued the distress warrant. In these circumstances, it was held that the order of the Magistrate was illegal and could not be sustained. The position in the instant case is entirely different. The file of the Commercial Tax Officer does indicate that the petitioners themselves filed a return and calculated the amount of tax payable by them. The very same tax was demanded from the petitioners under a notice of demand. Firstly, they ought to have paid the tax in advance which they never did. Secondly, the demand notice was issued and again they failed to pay the tax. In view of sections 12 and 12-B of the Act, decidedly that was the amount due under the Act from such a dealer. As such, upon the plain language of section 13(3), the amount due was recoverable as if it were a fine imposed by a Magistrate. Thus, the said ruling relied upon by the learned counsel will not be of any help to the petitioners. An assessment order was not required, as under section 12-B, the tax was an amount due under the Act from such dealer. In fact, that was the amount pointed out by the dealer himself as payable by him. Therefore, the order of the learned Magistrate cannot be questioned on this ground that either he did not apply his mind or that he did not see the required documents before issuing the distress warrant. </p><p style="text-align: justify;">4. The learned counsel then pointed out that the warrant issued was vague inasmuch as it did not specify the particular lorry which was to be attached. That was not the requirement of law. Under section 421, the warrant had to specify for the attachment and sale of any movable property belonging to the assessee. It could not be contemplated that the lorry or any other movable property would at all be available for attachment at the time the order was to be served upon the assessee. Therefore, no exception can be taken to the form of the warrant issued. It was rather the correct warrant and provided for all that was required under law to be provided for. </p><p style="text-align: justify;">5. An ingenious argument was raised by the learned counsel for the petitioners with reference to section 421 of the Code of Criminal Procedure. It was stated that the learned Magistrate could not impose a fine exceeding Rs. 5,000 and, therefore, the issue of distress warrant for recovery of Rs. 67,200 by attachment and sale of property was an act beyond the jurisdiction of the Magistrate. For that, the learned counsel relied on a Division Bench case of this Court in Mohanlal Premchand v. Commercial Tax Officer [[1971] 28 S.T.C. 492; (1971) 1 Mys. L.J. 72]. But, that case related to the unamended section 13(3)(b). The language 'notwithstanding anything contained in the Code of Criminal Procedure, 1898' was not there before 1972. That is why, the Division Bench of this Court came to the conclusion that the Magistrate issuing the warrant of distress could not ask for recovery of an amount exceeding his own power to levy fine. The above-noted language used in sub-section (3)(b) rather makes the position clear. The limit imposed by the legislature on the levy of fine will no longer hold goods and the Magistrate would realise the amount 'as if it were a fine imposed by him' notwithstanding that the amount to be recovered is much more than the fine which could be imposed by him. </p><p style="text-align: justify;">6. In this view of the matter, I do not find any defect in the order made by the learned Magistrate. As such, no revision is sustainable against that order. The petition is, therefore, dismissed. </p><p style="text-align: justify;">7. Petition dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[1977]40STC320(Kar)', 'ratiodecidendi' => '', 'respondent' => 'The Commercial Tax Officer, Mysore Circle, Mysore', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ), 'casename_url' => 's-dasappa-company-vs-commercial-officer', 'args' => array( (int) 0 => '371016', (int) 1 => 's-dasappa-company-vs-commercial-officer' ) ) $title_for_layout = 'S Dasappa and Company Vs the Commercial Tax Officer Mysore Circle Mysore - Citation 371016 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '371016', 'acts' => '<a href="/act/62040/karnataka-sales-tax-act-1957-complete-act">Karnataka Sales Tax Act, 1957</a> - Sections 12, 12B, 13(3) and 13(4)', 'appealno' => 'Criminal Revision Petition No. 468 of 1976', 'appellant' => 'S. Dasappa and Company', 'authreffered' => '', 'casename' => 'S. Dasappa and Company Vs. the Commercial Tax Officer, Mysore Circle, Mysore', 'casenote' => ' - COMPANIES ACT, 1956 [C.A. No. 1/1956]. Sections 529 & 529A & State Financial Corporation Act 1951, Section 29: [S.R. Bannurmath & A.N. Venugopala Gowda, JJ] Proceedings under Taking over of assets of the industrial concern in realisation of dues Sale of assets - Applicability of provisions of Section 529 and 529A Held, The Corporation cannot exercise its rights if the assets of the industrial concern, has already vested in the Company Court or if the Official Liquidator had been put in charge of the assets of the industrial concern. If the winding up proceedings are not set in motion, then, there is no legal impediment to the Corporation to take action under Section 29 of the S.F.C. Act, 1951 and permission of Company Court is not required to be obtained. In the absence of commencement of winding up proceedings, the provision of Section 529 and 529A of the Companies Act cannot be made applicable. The action of the Corporation under Section 29 of the S.F.C. Act is lawful. Further, the Corporation took over only the assets and not the management. The money realised by effecting sale under Sub-Section (2) of Section 29, cannot be apportioned or ordered to be paid to the workmen of the industrial concern, when the industrial concern is not under the winding up proceedings, in terms of the provisions under the Companies Act. The Corporation cannot be held liable either jointly or severally to pay the closure compensation or other claims of the workmen. The industry is liable to pay the wages of the lockout period and the closure compensation to the workmen. -- STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. -- STATE FINANCIAL CORPORATIONS ACT, 1951. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. - As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. Secondly, the demand notice was issued and again they failed to pay the tax.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'S.D. Chhatre, Adv.', 'counseldef' => 'T.J. Chouta, High Court Government Pleader', 'court' => 'Karnataka', 'court_type' => 'HC', 'decidedon' => '1977-02-02', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => 'D.B. Lal, J.', 'judgement' => 'ORDER<p>Lal, J. </p><p>1. This is a criminal revision under section 13(4) of the <a>Karnataka Sales Tax Act, 1957</a> (hereinafter to be referred to as the 'Act'), and it arises in the following circumstances : </p><p>M/s. S. Dasappa and Company is said to be a partnership firm having their place of business at Santepet, Kollegal, District Mysore. It is not disputed that they are assessees under the Act and, accordingly, under sections 12 and 12-B of the Act, they were liable to submit returns for assessment. They were also liable to pay the tax in advance. It is again beyond the pale of controversy that M/s. S. Dasappa and Company, the present petitioners, submitted the annual return under section 12 in form 4, but did not pay any tax in advance. The Commercial Tax Officer issued a notice of demand under form 3-A under rule 18(1)(c) made under the Act. Despite that notice of demand, the tax was not paid. Accordingly, it was considered by the department that the tax was an amount due under the Act from such dealer. Under section 13(3)(b), the Commercial Tax Officer filed an application before the Magistrate that the amount be realised as if it were a fine imposed by him. Thereafter, a distress warrant was issued by the Magistrate and a lorry belonging to the petitioners was attached. Against that order passed by learned Magistrate, the present revision is filed under sub-section (4) of section 13 of the Act. </p><p>2. The learned counsel for the petitioners contended that before issuing a distress warrant, the Magistrate was required to issue a notice to show cause. These is no requirement for such a prior notice under section 421 of the Code of Criminal Procedure. Similarly, there is no provision for a prior notice to show cause under section 13(4) of the Act. Therefore, the order of the learned Magistrate cannot be struck down merely, because he did not issue a notice to show cause. The petitioners have also submitted a return in form 4 and, on the basis of that return, the sales tax due in a sum of Rs. 67,200 was demanded. The records of the Commercial Tax Officer is brought for a perusal of the court by the learned State Public Prosecutor and from that record it is evident that the said return was filed by the petitioners and under a calculation made on the basis of their return, a sum of Rs. 67,200 was payable as sales tax. In fact, the petitioners have themselves mentioned that amount as payable by them for sales tax. Since under sections 12 and 12-B of the Act, the tax was payable in advance and the same was not paid, the demand notice under form 3-A was issued. In these circumstances, even principles of natural justice never required that a prior notice to show cause should have been given before sending a warrant for attachment and sale of any movable property belonging to the assessee. </p><p>3. It is next contended by the learned counsel that there was no assessment order and the learned Magistrate was required to see the assessment order before he could proceed to issue the warrant for attachment and sale of any movable property. For this the learned counsel relied on a decision in Ganesh Narayana Hedge v. Commercial Tax Officer, Sirsi [[1976] 37 S.T.C. 567; (1976) 1 Kar. L.J. 233]. But the facts of that case were different and that ruling would have no effect in the present case. As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. That apart, no material was produced before the Magistrate even stating as to whether the petitioners were the assessees and as to whether any tax could at all be realised from them. The Magistrate did not apply his mind and issued the distress warrant. In these circumstances, it was held that the order of the Magistrate was illegal and could not be sustained. The position in the instant case is entirely different. The file of the Commercial Tax Officer does indicate that the petitioners themselves filed a return and calculated the amount of tax payable by them. The very same tax was demanded from the petitioners under a notice of demand. Firstly, they ought to have paid the tax in advance which they never did. Secondly, the demand notice was issued and again they failed to pay the tax. In view of sections 12 and 12-B of the Act, decidedly that was the amount due under the Act from such a dealer. As such, upon the plain language of section 13(3), the amount due was recoverable as if it were a fine imposed by a Magistrate. Thus, the said ruling relied upon by the learned counsel will not be of any help to the petitioners. An assessment order was not required, as under section 12-B, the tax was an amount due under the Act from such dealer. In fact, that was the amount pointed out by the dealer himself as payable by him. Therefore, the order of the learned Magistrate cannot be questioned on this ground that either he did not apply his mind or that he did not see the required documents before issuing the distress warrant. </p><p>4. The learned counsel then pointed out that the warrant issued was vague inasmuch as it did not specify the particular lorry which was to be attached. That was not the requirement of law. Under section 421, the warrant had to specify for the attachment and sale of any movable property belonging to the assessee. It could not be contemplated that the lorry or any other movable property would at all be available for attachment at the time the order was to be served upon the assessee. Therefore, no exception can be taken to the form of the warrant issued. It was rather the correct warrant and provided for all that was required under law to be provided for. </p><p>5. An ingenious argument was raised by the learned counsel for the petitioners with reference to section 421 of the Code of Criminal Procedure. It was stated that the learned Magistrate could not impose a fine exceeding Rs. 5,000 and, therefore, the issue of distress warrant for recovery of Rs. 67,200 by attachment and sale of property was an act beyond the jurisdiction of the Magistrate. For that, the learned counsel relied on a Division Bench case of this Court in Mohanlal Premchand v. Commercial Tax Officer [[1971] 28 S.T.C. 492; (1971) 1 Mys. L.J. 72]. But, that case related to the unamended section 13(3)(b). The language 'notwithstanding anything contained in the Code of Criminal Procedure, 1898' was not there before 1972. That is why, the Division Bench of this Court came to the conclusion that the Magistrate issuing the warrant of distress could not ask for recovery of an amount exceeding his own power to levy fine. The above-noted language used in sub-section (3)(b) rather makes the position clear. The limit imposed by the legislature on the levy of fine will no longer hold goods and the Magistrate would realise the amount 'as if it were a fine imposed by him' notwithstanding that the amount to be recovered is much more than the fine which could be imposed by him. </p><p>6. In this view of the matter, I do not find any defect in the order made by the learned Magistrate. As such, no revision is sustainable against that order. The petition is, therefore, dismissed. </p><p>7. Petition dismissed. <p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[1977]40STC320(Kar)', 'ratiodecidendi' => '', 'respondent' => 'The Commercial Tax Officer, Mysore Circle, Mysore', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ) $casename_url = 's-dasappa-company-vs-commercial-officer' $args = array( (int) 0 => '371016', (int) 1 => 's-dasappa-company-vs-commercial-officer' ) $url = 'https://sooperkanoon.com/case/amp/371016/s-dasappa-company-vs-commercial-officer' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>Lal, J. ', (int) 1 => '<p>1. This is a criminal revision under section 13(4) of the <a>Karnataka Sales Tax Act, 1957</a> (hereinafter to be referred to as the 'Act'), and it arises in the following circumstances : ', (int) 2 => '<p>M/s. S. Dasappa and Company is said to be a partnership firm having their place of business at Santepet, Kollegal, District Mysore. It is not disputed that they are assessees under the Act and, accordingly, under sections 12 and 12-B of the Act, they were liable to submit returns for assessment. They were also liable to pay the tax in advance. It is again beyond the pale of controversy that M/s. S. Dasappa and Company, the present petitioners, submitted the annual return under section 12 in form 4, but did not pay any tax in advance. The Commercial Tax Officer issued a notice of demand under form 3-A under rule 18(1)(c) made under the Act. Despite that notice of demand, the tax was not paid. Accordingly, it was considered by the department that the tax was an amount due under the Act from such dealer. Under section 13(3)(b), the Commercial Tax Officer filed an application before the Magistrate that the amount be realised as if it were a fine imposed by him. Thereafter, a distress warrant was issued by the Magistrate and a lorry belonging to the petitioners was attached. Against that order passed by learned Magistrate, the present revision is filed under sub-section (4) of section 13 of the Act. ', (int) 3 => '<p>2. The learned counsel for the petitioners contended that before issuing a distress warrant, the Magistrate was required to issue a notice to show cause. These is no requirement for such a prior notice under section 421 of the Code of Criminal Procedure. Similarly, there is no provision for a prior notice to show cause under section 13(4) of the Act. Therefore, the order of the learned Magistrate cannot be struck down merely, because he did not issue a notice to show cause. The petitioners have also submitted a return in form 4 and, on the basis of that return, the sales tax due in a sum of Rs. 67,200 was demanded. The records of the Commercial Tax Officer is brought for a perusal of the court by the learned State Public Prosecutor and from that record it is evident that the said return was filed by the petitioners and under a calculation made on the basis of their return, a sum of Rs. 67,200 was payable as sales tax. In fact, the petitioners have themselves mentioned that amount as payable by them for sales tax. Since under sections 12 and 12-B of the Act, the tax was payable in advance and the same was not paid, the demand notice under form 3-A was issued. In these circumstances, even principles of natural justice never required that a prior notice to show cause should have been given before sending a warrant for attachment and sale of any movable property belonging to the assessee. ', (int) 4 => '<p>3. It is next contended by the learned counsel that there was no assessment order and the learned Magistrate was required to see the assessment order before he could proceed to issue the warrant for attachment and sale of any movable property. For this the learned counsel relied on a decision in Ganesh Narayana Hedge v. Commercial Tax Officer, Sirsi [[1976] 37 S.T.C. 567; (1976) 1 Kar. L.J. 233]. But the facts of that case were different and that ruling would have no effect in the present case. As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. That apart, no material was produced before the Magistrate even stating as to whether the petitioners were the assessees and as to whether any tax could at all be realised from them. The Magistrate did not apply his mind and issued the distress warrant. In these circumstances, it was held that the order of the Magistrate was illegal and could not be sustained. The position in the instant case is entirely different. The file of the Commercial Tax Officer does indicate that the petitioners themselves filed a return and calculated the amount of tax payable by them. The very same tax was demanded from the petitioners under a notice of demand. Firstly, they ought to have paid the tax in advance which they never did. Secondly, the demand notice was issued and again they failed to pay the tax. In view of sections 12 and 12-B of the Act, decidedly that was the amount due under the Act from such a dealer. As such, upon the plain language of section 13(3), the amount due was recoverable as if it were a fine imposed by a Magistrate. Thus, the said ruling relied upon by the learned counsel will not be of any help to the petitioners. An assessment order was not required, as under section 12-B, the tax was an amount due under the Act from such dealer. In fact, that was the amount pointed out by the dealer himself as payable by him. Therefore, the order of the learned Magistrate cannot be questioned on this ground that either he did not apply his mind or that he did not see the required documents before issuing the distress warrant. ', (int) 5 => '<p>4. The learned counsel then pointed out that the warrant issued was vague inasmuch as it did not specify the particular lorry which was to be attached. That was not the requirement of law. Under section 421, the warrant had to specify for the attachment and sale of any movable property belonging to the assessee. It could not be contemplated that the lorry or any other movable property would at all be available for attachment at the time the order was to be served upon the assessee. Therefore, no exception can be taken to the form of the warrant issued. It was rather the correct warrant and provided for all that was required under law to be provided for. ', (int) 6 => '<p>5. An ingenious argument was raised by the learned counsel for the petitioners with reference to section 421 of the Code of Criminal Procedure. It was stated that the learned Magistrate could not impose a fine exceeding Rs. 5,000 and, therefore, the issue of distress warrant for recovery of Rs. 67,200 by attachment and sale of property was an act beyond the jurisdiction of the Magistrate. For that, the learned counsel relied on a Division Bench case of this Court in Mohanlal Premchand v. Commercial Tax Officer [[1971] 28 S.T.C. 492; (1971) 1 Mys. L.J. 72]. But, that case related to the unamended section 13(3)(b). The language 'notwithstanding anything contained in the Code of Criminal Procedure, 1898' was not there before 1972. That is why, the Division Bench of this Court came to the conclusion that the Magistrate issuing the warrant of distress could not ask for recovery of an amount exceeding his own power to levy fine. The above-noted language used in sub-section (3)(b) rather makes the position clear. The limit imposed by the legislature on the levy of fine will no longer hold goods and the Magistrate would realise the amount 'as if it were a fine imposed by him' notwithstanding that the amount to be recovered is much more than the fine which could be imposed by him. ', (int) 7 => '<p>6. In this view of the matter, I do not find any defect in the order made by the learned Magistrate. As such, no revision is sustainable against that order. The petition is, therefore, dismissed. ', (int) 8 => '<p>7. Petition dismissed. <p>', (int) 9 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 10 $i = (int) 2include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
M/s. S. Dasappa and Company is said to be a partnership firm having their place of business at Santepet, Kollegal, District Mysore. It is not disputed that they are assessees under the Act and, accordingly, under sections 12 and 12-B of the Act, they were liable to submit returns for assessment. They were also liable to pay the tax in advance. It is again beyond the pale of controversy that M/s. S. Dasappa and Company, the present petitioners, submitted the annual return under section 12 in form 4, but did not pay any tax in advance. The Commercial Tax Officer issued a notice of demand under form 3-A under rule 18(1)(c) made under the Act. Despite that notice of demand, the tax was not paid. Accordingly, it was considered by the department that the tax was an amount due under the Act from such dealer. Under section 13(3)(b), the Commercial Tax Officer filed an application before the Magistrate that the amount be realised as if it were a fine imposed by him. Thereafter, a distress warrant was issued by the Magistrate and a lorry belonging to the petitioners was attached. Against that order passed by learned Magistrate, the present revision is filed under sub-section (4) of section 13 of the Act.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'S Dasappa and Company Vs the Commercial Tax Officer Mysore Circle Mysore - Citation 371016 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '371016', 'acts' => '<a href="/act/62040/karnataka-sales-tax-act-1957-complete-act">Karnataka Sales Tax Act, 1957</a> - Sections 12, 12B, 13(3) and 13(4)', 'appealno' => 'Criminal Revision Petition No. 468 of 1976', 'appellant' => 'S. Dasappa and Company', 'authreffered' => '', 'casename' => 'S. Dasappa and Company Vs. the Commercial Tax Officer, Mysore Circle, Mysore', 'casenote' => ' - COMPANIES ACT, 1956 [C.A. No. 1/1956]. Sections 529 & 529A & State Financial Corporation Act 1951, Section 29: [S.R. Bannurmath & A.N. Venugopala Gowda, JJ] Proceedings under Taking over of assets of the industrial concern in realisation of dues Sale of assets - Applicability of provisions of Section 529 and 529A Held, The Corporation cannot exercise its rights if the assets of the industrial concern, has already vested in the Company Court or if the Official Liquidator had been put in charge of the assets of the industrial concern. If the winding up proceedings are not set in motion, then, there is no legal impediment to the Corporation to take action under Section 29 of the S.F.C. Act, 1951 and permission of Company Court is not required to be obtained. In the absence of commencement of winding up proceedings, the provision of Section 529 and 529A of the Companies Act cannot be made applicable. The action of the Corporation under Section 29 of the S.F.C. Act is lawful. Further, the Corporation took over only the assets and not the management. The money realised by effecting sale under Sub-Section (2) of Section 29, cannot be apportioned or ordered to be paid to the workmen of the industrial concern, when the industrial concern is not under the winding up proceedings, in terms of the provisions under the Companies Act. The Corporation cannot be held liable either jointly or severally to pay the closure compensation or other claims of the workmen. The industry is liable to pay the wages of the lockout period and the closure compensation to the workmen. -- STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. -- STATE FINANCIAL CORPORATIONS ACT, 1951. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. - As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. Secondly, the demand notice was issued and again they failed to pay the tax.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'S.D. Chhatre, Adv.', 'counseldef' => 'T.J. Chouta, High Court Government Pleader', 'court' => 'Karnataka', 'court_type' => 'HC', 'decidedon' => '1977-02-02', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => 'D.B. Lal, J.', 'judgement' => 'ORDER<p style="text-align: justify;">Lal, J. </p><p style="text-align: justify;">1. This is a criminal revision under section 13(4) of the <a href="/act/62040/karnataka-sales-tax-act-1957-complete-act">Karnataka Sales Tax Act, 1957</a> (hereinafter to be referred to as the 'Act'), and it arises in the following circumstances : </p><p style="text-align: justify;">M/s. S. Dasappa and Company is said to be a partnership firm having their place of business at Santepet, Kollegal, District Mysore. It is not disputed that they are assessees under the Act and, accordingly, under sections 12 and 12-B of the Act, they were liable to submit returns for assessment. They were also liable to pay the tax in advance. It is again beyond the pale of controversy that M/s. S. Dasappa and Company, the present petitioners, submitted the annual return under section 12 in form 4, but did not pay any tax in advance. The Commercial Tax Officer issued a notice of demand under form 3-A under rule 18(1)(c) made under the Act. Despite that notice of demand, the tax was not paid. Accordingly, it was considered by the department that the tax was an amount due under the Act from such dealer. Under section 13(3)(b), the Commercial Tax Officer filed an application before the Magistrate that the amount be realised as if it were a fine imposed by him. Thereafter, a distress warrant was issued by the Magistrate and a lorry belonging to the petitioners was attached. Against that order passed by learned Magistrate, the present revision is filed under sub-section (4) of section 13 of the Act. </p><p style="text-align: justify;">2. The learned counsel for the petitioners contended that before issuing a distress warrant, the Magistrate was required to issue a notice to show cause. These is no requirement for such a prior notice under section 421 of the Code of Criminal Procedure. Similarly, there is no provision for a prior notice to show cause under section 13(4) of the Act. Therefore, the order of the learned Magistrate cannot be struck down merely, because he did not issue a notice to show cause. The petitioners have also submitted a return in form 4 and, on the basis of that return, the sales tax due in a sum of Rs. 67,200 was demanded. The records of the Commercial Tax Officer is brought for a perusal of the court by the learned State Public Prosecutor and from that record it is evident that the said return was filed by the petitioners and under a calculation made on the basis of their return, a sum of Rs. 67,200 was payable as sales tax. In fact, the petitioners have themselves mentioned that amount as payable by them for sales tax. Since under sections 12 and 12-B of the Act, the tax was payable in advance and the same was not paid, the demand notice under form 3-A was issued. In these circumstances, even principles of natural justice never required that a prior notice to show cause should have been given before sending a warrant for attachment and sale of any movable property belonging to the assessee. </p><p style="text-align: justify;">3. It is next contended by the learned counsel that there was no assessment order and the learned Magistrate was required to see the assessment order before he could proceed to issue the warrant for attachment and sale of any movable property. For this the learned counsel relied on a decision in Ganesh Narayana Hedge v. Commercial Tax Officer, Sirsi [[1976] 37 S.T.C. 567; (1976) 1 Kar. L.J. 233]. But the facts of that case were different and that ruling would have no effect in the present case. As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. That apart, no material was produced before the Magistrate even stating as to whether the petitioners were the assessees and as to whether any tax could at all be realised from them. The Magistrate did not apply his mind and issued the distress warrant. In these circumstances, it was held that the order of the Magistrate was illegal and could not be sustained. The position in the instant case is entirely different. The file of the Commercial Tax Officer does indicate that the petitioners themselves filed a return and calculated the amount of tax payable by them. The very same tax was demanded from the petitioners under a notice of demand. Firstly, they ought to have paid the tax in advance which they never did. Secondly, the demand notice was issued and again they failed to pay the tax. In view of sections 12 and 12-B of the Act, decidedly that was the amount due under the Act from such a dealer. As such, upon the plain language of section 13(3), the amount due was recoverable as if it were a fine imposed by a Magistrate. Thus, the said ruling relied upon by the learned counsel will not be of any help to the petitioners. An assessment order was not required, as under section 12-B, the tax was an amount due under the Act from such dealer. In fact, that was the amount pointed out by the dealer himself as payable by him. Therefore, the order of the learned Magistrate cannot be questioned on this ground that either he did not apply his mind or that he did not see the required documents before issuing the distress warrant. </p><p style="text-align: justify;">4. The learned counsel then pointed out that the warrant issued was vague inasmuch as it did not specify the particular lorry which was to be attached. That was not the requirement of law. Under section 421, the warrant had to specify for the attachment and sale of any movable property belonging to the assessee. It could not be contemplated that the lorry or any other movable property would at all be available for attachment at the time the order was to be served upon the assessee. Therefore, no exception can be taken to the form of the warrant issued. It was rather the correct warrant and provided for all that was required under law to be provided for. </p><p style="text-align: justify;">5. An ingenious argument was raised by the learned counsel for the petitioners with reference to section 421 of the Code of Criminal Procedure. It was stated that the learned Magistrate could not impose a fine exceeding Rs. 5,000 and, therefore, the issue of distress warrant for recovery of Rs. 67,200 by attachment and sale of property was an act beyond the jurisdiction of the Magistrate. For that, the learned counsel relied on a Division Bench case of this Court in Mohanlal Premchand v. Commercial Tax Officer [[1971] 28 S.T.C. 492; (1971) 1 Mys. L.J. 72]. But, that case related to the unamended section 13(3)(b). The language 'notwithstanding anything contained in the Code of Criminal Procedure, 1898' was not there before 1972. That is why, the Division Bench of this Court came to the conclusion that the Magistrate issuing the warrant of distress could not ask for recovery of an amount exceeding his own power to levy fine. The above-noted language used in sub-section (3)(b) rather makes the position clear. The limit imposed by the legislature on the levy of fine will no longer hold goods and the Magistrate would realise the amount 'as if it were a fine imposed by him' notwithstanding that the amount to be recovered is much more than the fine which could be imposed by him. </p><p style="text-align: justify;">6. In this view of the matter, I do not find any defect in the order made by the learned Magistrate. As such, no revision is sustainable against that order. The petition is, therefore, dismissed. </p><p style="text-align: justify;">7. Petition dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[1977]40STC320(Kar)', 'ratiodecidendi' => '', 'respondent' => 'The Commercial Tax Officer, Mysore Circle, Mysore', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ), 'casename_url' => 's-dasappa-company-vs-commercial-officer', 'args' => array( (int) 0 => '371016', (int) 1 => 's-dasappa-company-vs-commercial-officer' ) ) $title_for_layout = 'S Dasappa and Company Vs the Commercial Tax Officer Mysore Circle Mysore - Citation 371016 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '371016', 'acts' => '<a href="/act/62040/karnataka-sales-tax-act-1957-complete-act">Karnataka Sales Tax Act, 1957</a> - Sections 12, 12B, 13(3) and 13(4)', 'appealno' => 'Criminal Revision Petition No. 468 of 1976', 'appellant' => 'S. Dasappa and Company', 'authreffered' => '', 'casename' => 'S. Dasappa and Company Vs. the Commercial Tax Officer, Mysore Circle, Mysore', 'casenote' => ' - COMPANIES ACT, 1956 [C.A. No. 1/1956]. Sections 529 & 529A & State Financial Corporation Act 1951, Section 29: [S.R. Bannurmath & A.N. Venugopala Gowda, JJ] Proceedings under Taking over of assets of the industrial concern in realisation of dues Sale of assets - Applicability of provisions of Section 529 and 529A Held, The Corporation cannot exercise its rights if the assets of the industrial concern, has already vested in the Company Court or if the Official Liquidator had been put in charge of the assets of the industrial concern. If the winding up proceedings are not set in motion, then, there is no legal impediment to the Corporation to take action under Section 29 of the S.F.C. Act, 1951 and permission of Company Court is not required to be obtained. In the absence of commencement of winding up proceedings, the provision of Section 529 and 529A of the Companies Act cannot be made applicable. The action of the Corporation under Section 29 of the S.F.C. Act is lawful. Further, the Corporation took over only the assets and not the management. The money realised by effecting sale under Sub-Section (2) of Section 29, cannot be apportioned or ordered to be paid to the workmen of the industrial concern, when the industrial concern is not under the winding up proceedings, in terms of the provisions under the Companies Act. The Corporation cannot be held liable either jointly or severally to pay the closure compensation or other claims of the workmen. The industry is liable to pay the wages of the lockout period and the closure compensation to the workmen. -- STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. -- STATE FINANCIAL CORPORATIONS ACT, 1951. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. - As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. Secondly, the demand notice was issued and again they failed to pay the tax.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'S.D. Chhatre, Adv.', 'counseldef' => 'T.J. Chouta, High Court Government Pleader', 'court' => 'Karnataka', 'court_type' => 'HC', 'decidedon' => '1977-02-02', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => 'D.B. Lal, J.', 'judgement' => 'ORDER<p>Lal, J. </p><p>1. This is a criminal revision under section 13(4) of the <a>Karnataka Sales Tax Act, 1957</a> (hereinafter to be referred to as the 'Act'), and it arises in the following circumstances : </p><p>M/s. S. Dasappa and Company is said to be a partnership firm having their place of business at Santepet, Kollegal, District Mysore. It is not disputed that they are assessees under the Act and, accordingly, under sections 12 and 12-B of the Act, they were liable to submit returns for assessment. They were also liable to pay the tax in advance. It is again beyond the pale of controversy that M/s. S. Dasappa and Company, the present petitioners, submitted the annual return under section 12 in form 4, but did not pay any tax in advance. The Commercial Tax Officer issued a notice of demand under form 3-A under rule 18(1)(c) made under the Act. Despite that notice of demand, the tax was not paid. Accordingly, it was considered by the department that the tax was an amount due under the Act from such dealer. Under section 13(3)(b), the Commercial Tax Officer filed an application before the Magistrate that the amount be realised as if it were a fine imposed by him. Thereafter, a distress warrant was issued by the Magistrate and a lorry belonging to the petitioners was attached. Against that order passed by learned Magistrate, the present revision is filed under sub-section (4) of section 13 of the Act. </p><p>2. The learned counsel for the petitioners contended that before issuing a distress warrant, the Magistrate was required to issue a notice to show cause. These is no requirement for such a prior notice under section 421 of the Code of Criminal Procedure. Similarly, there is no provision for a prior notice to show cause under section 13(4) of the Act. Therefore, the order of the learned Magistrate cannot be struck down merely, because he did not issue a notice to show cause. The petitioners have also submitted a return in form 4 and, on the basis of that return, the sales tax due in a sum of Rs. 67,200 was demanded. The records of the Commercial Tax Officer is brought for a perusal of the court by the learned State Public Prosecutor and from that record it is evident that the said return was filed by the petitioners and under a calculation made on the basis of their return, a sum of Rs. 67,200 was payable as sales tax. In fact, the petitioners have themselves mentioned that amount as payable by them for sales tax. Since under sections 12 and 12-B of the Act, the tax was payable in advance and the same was not paid, the demand notice under form 3-A was issued. In these circumstances, even principles of natural justice never required that a prior notice to show cause should have been given before sending a warrant for attachment and sale of any movable property belonging to the assessee. </p><p>3. It is next contended by the learned counsel that there was no assessment order and the learned Magistrate was required to see the assessment order before he could proceed to issue the warrant for attachment and sale of any movable property. For this the learned counsel relied on a decision in Ganesh Narayana Hedge v. Commercial Tax Officer, Sirsi [[1976] 37 S.T.C. 567; (1976) 1 Kar. L.J. 233]. But the facts of that case were different and that ruling would have no effect in the present case. As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. That apart, no material was produced before the Magistrate even stating as to whether the petitioners were the assessees and as to whether any tax could at all be realised from them. The Magistrate did not apply his mind and issued the distress warrant. In these circumstances, it was held that the order of the Magistrate was illegal and could not be sustained. The position in the instant case is entirely different. The file of the Commercial Tax Officer does indicate that the petitioners themselves filed a return and calculated the amount of tax payable by them. The very same tax was demanded from the petitioners under a notice of demand. Firstly, they ought to have paid the tax in advance which they never did. Secondly, the demand notice was issued and again they failed to pay the tax. In view of sections 12 and 12-B of the Act, decidedly that was the amount due under the Act from such a dealer. As such, upon the plain language of section 13(3), the amount due was recoverable as if it were a fine imposed by a Magistrate. Thus, the said ruling relied upon by the learned counsel will not be of any help to the petitioners. An assessment order was not required, as under section 12-B, the tax was an amount due under the Act from such dealer. In fact, that was the amount pointed out by the dealer himself as payable by him. Therefore, the order of the learned Magistrate cannot be questioned on this ground that either he did not apply his mind or that he did not see the required documents before issuing the distress warrant. </p><p>4. The learned counsel then pointed out that the warrant issued was vague inasmuch as it did not specify the particular lorry which was to be attached. That was not the requirement of law. Under section 421, the warrant had to specify for the attachment and sale of any movable property belonging to the assessee. It could not be contemplated that the lorry or any other movable property would at all be available for attachment at the time the order was to be served upon the assessee. Therefore, no exception can be taken to the form of the warrant issued. It was rather the correct warrant and provided for all that was required under law to be provided for. </p><p>5. An ingenious argument was raised by the learned counsel for the petitioners with reference to section 421 of the Code of Criminal Procedure. It was stated that the learned Magistrate could not impose a fine exceeding Rs. 5,000 and, therefore, the issue of distress warrant for recovery of Rs. 67,200 by attachment and sale of property was an act beyond the jurisdiction of the Magistrate. For that, the learned counsel relied on a Division Bench case of this Court in Mohanlal Premchand v. Commercial Tax Officer [[1971] 28 S.T.C. 492; (1971) 1 Mys. L.J. 72]. But, that case related to the unamended section 13(3)(b). The language 'notwithstanding anything contained in the Code of Criminal Procedure, 1898' was not there before 1972. That is why, the Division Bench of this Court came to the conclusion that the Magistrate issuing the warrant of distress could not ask for recovery of an amount exceeding his own power to levy fine. The above-noted language used in sub-section (3)(b) rather makes the position clear. The limit imposed by the legislature on the levy of fine will no longer hold goods and the Magistrate would realise the amount 'as if it were a fine imposed by him' notwithstanding that the amount to be recovered is much more than the fine which could be imposed by him. </p><p>6. In this view of the matter, I do not find any defect in the order made by the learned Magistrate. As such, no revision is sustainable against that order. The petition is, therefore, dismissed. </p><p>7. Petition dismissed. <p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[1977]40STC320(Kar)', 'ratiodecidendi' => '', 'respondent' => 'The Commercial Tax Officer, Mysore Circle, Mysore', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ) $casename_url = 's-dasappa-company-vs-commercial-officer' $args = array( (int) 0 => '371016', (int) 1 => 's-dasappa-company-vs-commercial-officer' ) $url = 'https://sooperkanoon.com/case/amp/371016/s-dasappa-company-vs-commercial-officer' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>Lal, J. ', (int) 1 => '<p>1. This is a criminal revision under section 13(4) of the <a>Karnataka Sales Tax Act, 1957</a> (hereinafter to be referred to as the 'Act'), and it arises in the following circumstances : ', (int) 2 => '<p>M/s. S. Dasappa and Company is said to be a partnership firm having their place of business at Santepet, Kollegal, District Mysore. It is not disputed that they are assessees under the Act and, accordingly, under sections 12 and 12-B of the Act, they were liable to submit returns for assessment. They were also liable to pay the tax in advance. It is again beyond the pale of controversy that M/s. S. Dasappa and Company, the present petitioners, submitted the annual return under section 12 in form 4, but did not pay any tax in advance. The Commercial Tax Officer issued a notice of demand under form 3-A under rule 18(1)(c) made under the Act. Despite that notice of demand, the tax was not paid. Accordingly, it was considered by the department that the tax was an amount due under the Act from such dealer. Under section 13(3)(b), the Commercial Tax Officer filed an application before the Magistrate that the amount be realised as if it were a fine imposed by him. Thereafter, a distress warrant was issued by the Magistrate and a lorry belonging to the petitioners was attached. Against that order passed by learned Magistrate, the present revision is filed under sub-section (4) of section 13 of the Act. ', (int) 3 => '<p>2. The learned counsel for the petitioners contended that before issuing a distress warrant, the Magistrate was required to issue a notice to show cause. These is no requirement for such a prior notice under section 421 of the Code of Criminal Procedure. Similarly, there is no provision for a prior notice to show cause under section 13(4) of the Act. Therefore, the order of the learned Magistrate cannot be struck down merely, because he did not issue a notice to show cause. The petitioners have also submitted a return in form 4 and, on the basis of that return, the sales tax due in a sum of Rs. 67,200 was demanded. The records of the Commercial Tax Officer is brought for a perusal of the court by the learned State Public Prosecutor and from that record it is evident that the said return was filed by the petitioners and under a calculation made on the basis of their return, a sum of Rs. 67,200 was payable as sales tax. In fact, the petitioners have themselves mentioned that amount as payable by them for sales tax. Since under sections 12 and 12-B of the Act, the tax was payable in advance and the same was not paid, the demand notice under form 3-A was issued. In these circumstances, even principles of natural justice never required that a prior notice to show cause should have been given before sending a warrant for attachment and sale of any movable property belonging to the assessee. ', (int) 4 => '<p>3. It is next contended by the learned counsel that there was no assessment order and the learned Magistrate was required to see the assessment order before he could proceed to issue the warrant for attachment and sale of any movable property. For this the learned counsel relied on a decision in Ganesh Narayana Hedge v. Commercial Tax Officer, Sirsi [[1976] 37 S.T.C. 567; (1976) 1 Kar. L.J. 233]. But the facts of that case were different and that ruling would have no effect in the present case. As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. That apart, no material was produced before the Magistrate even stating as to whether the petitioners were the assessees and as to whether any tax could at all be realised from them. The Magistrate did not apply his mind and issued the distress warrant. In these circumstances, it was held that the order of the Magistrate was illegal and could not be sustained. The position in the instant case is entirely different. The file of the Commercial Tax Officer does indicate that the petitioners themselves filed a return and calculated the amount of tax payable by them. The very same tax was demanded from the petitioners under a notice of demand. Firstly, they ought to have paid the tax in advance which they never did. Secondly, the demand notice was issued and again they failed to pay the tax. In view of sections 12 and 12-B of the Act, decidedly that was the amount due under the Act from such a dealer. As such, upon the plain language of section 13(3), the amount due was recoverable as if it were a fine imposed by a Magistrate. Thus, the said ruling relied upon by the learned counsel will not be of any help to the petitioners. An assessment order was not required, as under section 12-B, the tax was an amount due under the Act from such dealer. In fact, that was the amount pointed out by the dealer himself as payable by him. Therefore, the order of the learned Magistrate cannot be questioned on this ground that either he did not apply his mind or that he did not see the required documents before issuing the distress warrant. ', (int) 5 => '<p>4. The learned counsel then pointed out that the warrant issued was vague inasmuch as it did not specify the particular lorry which was to be attached. That was not the requirement of law. Under section 421, the warrant had to specify for the attachment and sale of any movable property belonging to the assessee. It could not be contemplated that the lorry or any other movable property would at all be available for attachment at the time the order was to be served upon the assessee. Therefore, no exception can be taken to the form of the warrant issued. It was rather the correct warrant and provided for all that was required under law to be provided for. ', (int) 6 => '<p>5. An ingenious argument was raised by the learned counsel for the petitioners with reference to section 421 of the Code of Criminal Procedure. It was stated that the learned Magistrate could not impose a fine exceeding Rs. 5,000 and, therefore, the issue of distress warrant for recovery of Rs. 67,200 by attachment and sale of property was an act beyond the jurisdiction of the Magistrate. For that, the learned counsel relied on a Division Bench case of this Court in Mohanlal Premchand v. Commercial Tax Officer [[1971] 28 S.T.C. 492; (1971) 1 Mys. L.J. 72]. But, that case related to the unamended section 13(3)(b). The language 'notwithstanding anything contained in the Code of Criminal Procedure, 1898' was not there before 1972. That is why, the Division Bench of this Court came to the conclusion that the Magistrate issuing the warrant of distress could not ask for recovery of an amount exceeding his own power to levy fine. The above-noted language used in sub-section (3)(b) rather makes the position clear. The limit imposed by the legislature on the levy of fine will no longer hold goods and the Magistrate would realise the amount 'as if it were a fine imposed by him' notwithstanding that the amount to be recovered is much more than the fine which could be imposed by him. ', (int) 7 => '<p>6. In this view of the matter, I do not find any defect in the order made by the learned Magistrate. As such, no revision is sustainable against that order. The petition is, therefore, dismissed. ', (int) 8 => '<p>7. Petition dismissed. <p>', (int) 9 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 10 $i = (int) 3include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
2. The learned counsel for the petitioners contended that before issuing a distress warrant, the Magistrate was required to issue a notice to show cause. These is no requirement for such a prior notice under section 421 of the Code of Criminal Procedure. Similarly, there is no provision for a prior notice to show cause under section 13(4) of the Act. Therefore, the order of the learned Magistrate cannot be struck down merely, because he did not issue a notice to show cause. The petitioners have also submitted a return in form 4 and, on the basis of that return, the sales tax due in a sum of Rs. 67,200 was demanded. The records of the Commercial Tax Officer is brought for a perusal of the court by the learned State Public Prosecutor and from that record it is evident that the said return was filed by the petitioners and under a calculation made on the basis of their return, a sum of Rs. 67,200 was payable as sales tax. In fact, the petitioners have themselves mentioned that amount as payable by them for sales tax. Since under sections 12 and 12-B of the Act, the tax was payable in advance and the same was not paid, the demand notice under form 3-A was issued. In these circumstances, even principles of natural justice never required that a prior notice to show cause should have been given before sending a warrant for attachment and sale of any movable property belonging to the assessee.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'S Dasappa and Company Vs the Commercial Tax Officer Mysore Circle Mysore - Citation 371016 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '371016', 'acts' => '<a href="/act/62040/karnataka-sales-tax-act-1957-complete-act">Karnataka Sales Tax Act, 1957</a> - Sections 12, 12B, 13(3) and 13(4)', 'appealno' => 'Criminal Revision Petition No. 468 of 1976', 'appellant' => 'S. Dasappa and Company', 'authreffered' => '', 'casename' => 'S. Dasappa and Company Vs. the Commercial Tax Officer, Mysore Circle, Mysore', 'casenote' => ' - COMPANIES ACT, 1956 [C.A. No. 1/1956]. Sections 529 & 529A & State Financial Corporation Act 1951, Section 29: [S.R. Bannurmath & A.N. Venugopala Gowda, JJ] Proceedings under Taking over of assets of the industrial concern in realisation of dues Sale of assets - Applicability of provisions of Section 529 and 529A Held, The Corporation cannot exercise its rights if the assets of the industrial concern, has already vested in the Company Court or if the Official Liquidator had been put in charge of the assets of the industrial concern. If the winding up proceedings are not set in motion, then, there is no legal impediment to the Corporation to take action under Section 29 of the S.F.C. Act, 1951 and permission of Company Court is not required to be obtained. In the absence of commencement of winding up proceedings, the provision of Section 529 and 529A of the Companies Act cannot be made applicable. The action of the Corporation under Section 29 of the S.F.C. Act is lawful. Further, the Corporation took over only the assets and not the management. The money realised by effecting sale under Sub-Section (2) of Section 29, cannot be apportioned or ordered to be paid to the workmen of the industrial concern, when the industrial concern is not under the winding up proceedings, in terms of the provisions under the Companies Act. The Corporation cannot be held liable either jointly or severally to pay the closure compensation or other claims of the workmen. The industry is liable to pay the wages of the lockout period and the closure compensation to the workmen. -- STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. -- STATE FINANCIAL CORPORATIONS ACT, 1951. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. - As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. Secondly, the demand notice was issued and again they failed to pay the tax.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'S.D. Chhatre, Adv.', 'counseldef' => 'T.J. Chouta, High Court Government Pleader', 'court' => 'Karnataka', 'court_type' => 'HC', 'decidedon' => '1977-02-02', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => 'D.B. Lal, J.', 'judgement' => 'ORDER<p style="text-align: justify;">Lal, J. </p><p style="text-align: justify;">1. This is a criminal revision under section 13(4) of the <a href="/act/62040/karnataka-sales-tax-act-1957-complete-act">Karnataka Sales Tax Act, 1957</a> (hereinafter to be referred to as the 'Act'), and it arises in the following circumstances : </p><p style="text-align: justify;">M/s. S. Dasappa and Company is said to be a partnership firm having their place of business at Santepet, Kollegal, District Mysore. It is not disputed that they are assessees under the Act and, accordingly, under sections 12 and 12-B of the Act, they were liable to submit returns for assessment. They were also liable to pay the tax in advance. It is again beyond the pale of controversy that M/s. S. Dasappa and Company, the present petitioners, submitted the annual return under section 12 in form 4, but did not pay any tax in advance. The Commercial Tax Officer issued a notice of demand under form 3-A under rule 18(1)(c) made under the Act. Despite that notice of demand, the tax was not paid. Accordingly, it was considered by the department that the tax was an amount due under the Act from such dealer. Under section 13(3)(b), the Commercial Tax Officer filed an application before the Magistrate that the amount be realised as if it were a fine imposed by him. Thereafter, a distress warrant was issued by the Magistrate and a lorry belonging to the petitioners was attached. Against that order passed by learned Magistrate, the present revision is filed under sub-section (4) of section 13 of the Act. </p><p style="text-align: justify;">2. The learned counsel for the petitioners contended that before issuing a distress warrant, the Magistrate was required to issue a notice to show cause. These is no requirement for such a prior notice under section 421 of the Code of Criminal Procedure. Similarly, there is no provision for a prior notice to show cause under section 13(4) of the Act. Therefore, the order of the learned Magistrate cannot be struck down merely, because he did not issue a notice to show cause. The petitioners have also submitted a return in form 4 and, on the basis of that return, the sales tax due in a sum of Rs. 67,200 was demanded. The records of the Commercial Tax Officer is brought for a perusal of the court by the learned State Public Prosecutor and from that record it is evident that the said return was filed by the petitioners and under a calculation made on the basis of their return, a sum of Rs. 67,200 was payable as sales tax. In fact, the petitioners have themselves mentioned that amount as payable by them for sales tax. Since under sections 12 and 12-B of the Act, the tax was payable in advance and the same was not paid, the demand notice under form 3-A was issued. In these circumstances, even principles of natural justice never required that a prior notice to show cause should have been given before sending a warrant for attachment and sale of any movable property belonging to the assessee. </p><p style="text-align: justify;">3. It is next contended by the learned counsel that there was no assessment order and the learned Magistrate was required to see the assessment order before he could proceed to issue the warrant for attachment and sale of any movable property. For this the learned counsel relied on a decision in Ganesh Narayana Hedge v. Commercial Tax Officer, Sirsi [[1976] 37 S.T.C. 567; (1976) 1 Kar. L.J. 233]. But the facts of that case were different and that ruling would have no effect in the present case. As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. That apart, no material was produced before the Magistrate even stating as to whether the petitioners were the assessees and as to whether any tax could at all be realised from them. The Magistrate did not apply his mind and issued the distress warrant. In these circumstances, it was held that the order of the Magistrate was illegal and could not be sustained. The position in the instant case is entirely different. The file of the Commercial Tax Officer does indicate that the petitioners themselves filed a return and calculated the amount of tax payable by them. The very same tax was demanded from the petitioners under a notice of demand. Firstly, they ought to have paid the tax in advance which they never did. Secondly, the demand notice was issued and again they failed to pay the tax. In view of sections 12 and 12-B of the Act, decidedly that was the amount due under the Act from such a dealer. As such, upon the plain language of section 13(3), the amount due was recoverable as if it were a fine imposed by a Magistrate. Thus, the said ruling relied upon by the learned counsel will not be of any help to the petitioners. An assessment order was not required, as under section 12-B, the tax was an amount due under the Act from such dealer. In fact, that was the amount pointed out by the dealer himself as payable by him. Therefore, the order of the learned Magistrate cannot be questioned on this ground that either he did not apply his mind or that he did not see the required documents before issuing the distress warrant. </p><p style="text-align: justify;">4. The learned counsel then pointed out that the warrant issued was vague inasmuch as it did not specify the particular lorry which was to be attached. That was not the requirement of law. Under section 421, the warrant had to specify for the attachment and sale of any movable property belonging to the assessee. It could not be contemplated that the lorry or any other movable property would at all be available for attachment at the time the order was to be served upon the assessee. Therefore, no exception can be taken to the form of the warrant issued. It was rather the correct warrant and provided for all that was required under law to be provided for. </p><p style="text-align: justify;">5. An ingenious argument was raised by the learned counsel for the petitioners with reference to section 421 of the Code of Criminal Procedure. It was stated that the learned Magistrate could not impose a fine exceeding Rs. 5,000 and, therefore, the issue of distress warrant for recovery of Rs. 67,200 by attachment and sale of property was an act beyond the jurisdiction of the Magistrate. For that, the learned counsel relied on a Division Bench case of this Court in Mohanlal Premchand v. Commercial Tax Officer [[1971] 28 S.T.C. 492; (1971) 1 Mys. L.J. 72]. But, that case related to the unamended section 13(3)(b). The language 'notwithstanding anything contained in the Code of Criminal Procedure, 1898' was not there before 1972. That is why, the Division Bench of this Court came to the conclusion that the Magistrate issuing the warrant of distress could not ask for recovery of an amount exceeding his own power to levy fine. The above-noted language used in sub-section (3)(b) rather makes the position clear. The limit imposed by the legislature on the levy of fine will no longer hold goods and the Magistrate would realise the amount 'as if it were a fine imposed by him' notwithstanding that the amount to be recovered is much more than the fine which could be imposed by him. </p><p style="text-align: justify;">6. In this view of the matter, I do not find any defect in the order made by the learned Magistrate. As such, no revision is sustainable against that order. The petition is, therefore, dismissed. </p><p style="text-align: justify;">7. Petition dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[1977]40STC320(Kar)', 'ratiodecidendi' => '', 'respondent' => 'The Commercial Tax Officer, Mysore Circle, Mysore', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ), 'casename_url' => 's-dasappa-company-vs-commercial-officer', 'args' => array( (int) 0 => '371016', (int) 1 => 's-dasappa-company-vs-commercial-officer' ) ) $title_for_layout = 'S Dasappa and Company Vs the Commercial Tax Officer Mysore Circle Mysore - Citation 371016 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '371016', 'acts' => '<a href="/act/62040/karnataka-sales-tax-act-1957-complete-act">Karnataka Sales Tax Act, 1957</a> - Sections 12, 12B, 13(3) and 13(4)', 'appealno' => 'Criminal Revision Petition No. 468 of 1976', 'appellant' => 'S. Dasappa and Company', 'authreffered' => '', 'casename' => 'S. Dasappa and Company Vs. the Commercial Tax Officer, Mysore Circle, Mysore', 'casenote' => ' - COMPANIES ACT, 1956 [C.A. No. 1/1956]. Sections 529 & 529A & State Financial Corporation Act 1951, Section 29: [S.R. Bannurmath & A.N. Venugopala Gowda, JJ] Proceedings under Taking over of assets of the industrial concern in realisation of dues Sale of assets - Applicability of provisions of Section 529 and 529A Held, The Corporation cannot exercise its rights if the assets of the industrial concern, has already vested in the Company Court or if the Official Liquidator had been put in charge of the assets of the industrial concern. If the winding up proceedings are not set in motion, then, there is no legal impediment to the Corporation to take action under Section 29 of the S.F.C. Act, 1951 and permission of Company Court is not required to be obtained. In the absence of commencement of winding up proceedings, the provision of Section 529 and 529A of the Companies Act cannot be made applicable. The action of the Corporation under Section 29 of the S.F.C. Act is lawful. Further, the Corporation took over only the assets and not the management. The money realised by effecting sale under Sub-Section (2) of Section 29, cannot be apportioned or ordered to be paid to the workmen of the industrial concern, when the industrial concern is not under the winding up proceedings, in terms of the provisions under the Companies Act. The Corporation cannot be held liable either jointly or severally to pay the closure compensation or other claims of the workmen. The industry is liable to pay the wages of the lockout period and the closure compensation to the workmen. -- STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. -- STATE FINANCIAL CORPORATIONS ACT, 1951. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. - As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. Secondly, the demand notice was issued and again they failed to pay the tax.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'S.D. Chhatre, Adv.', 'counseldef' => 'T.J. Chouta, High Court Government Pleader', 'court' => 'Karnataka', 'court_type' => 'HC', 'decidedon' => '1977-02-02', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => 'D.B. Lal, J.', 'judgement' => 'ORDER<p>Lal, J. </p><p>1. This is a criminal revision under section 13(4) of the <a>Karnataka Sales Tax Act, 1957</a> (hereinafter to be referred to as the 'Act'), and it arises in the following circumstances : </p><p>M/s. S. Dasappa and Company is said to be a partnership firm having their place of business at Santepet, Kollegal, District Mysore. It is not disputed that they are assessees under the Act and, accordingly, under sections 12 and 12-B of the Act, they were liable to submit returns for assessment. They were also liable to pay the tax in advance. It is again beyond the pale of controversy that M/s. S. Dasappa and Company, the present petitioners, submitted the annual return under section 12 in form 4, but did not pay any tax in advance. The Commercial Tax Officer issued a notice of demand under form 3-A under rule 18(1)(c) made under the Act. Despite that notice of demand, the tax was not paid. Accordingly, it was considered by the department that the tax was an amount due under the Act from such dealer. Under section 13(3)(b), the Commercial Tax Officer filed an application before the Magistrate that the amount be realised as if it were a fine imposed by him. Thereafter, a distress warrant was issued by the Magistrate and a lorry belonging to the petitioners was attached. Against that order passed by learned Magistrate, the present revision is filed under sub-section (4) of section 13 of the Act. </p><p>2. The learned counsel for the petitioners contended that before issuing a distress warrant, the Magistrate was required to issue a notice to show cause. These is no requirement for such a prior notice under section 421 of the Code of Criminal Procedure. Similarly, there is no provision for a prior notice to show cause under section 13(4) of the Act. Therefore, the order of the learned Magistrate cannot be struck down merely, because he did not issue a notice to show cause. The petitioners have also submitted a return in form 4 and, on the basis of that return, the sales tax due in a sum of Rs. 67,200 was demanded. The records of the Commercial Tax Officer is brought for a perusal of the court by the learned State Public Prosecutor and from that record it is evident that the said return was filed by the petitioners and under a calculation made on the basis of their return, a sum of Rs. 67,200 was payable as sales tax. In fact, the petitioners have themselves mentioned that amount as payable by them for sales tax. Since under sections 12 and 12-B of the Act, the tax was payable in advance and the same was not paid, the demand notice under form 3-A was issued. In these circumstances, even principles of natural justice never required that a prior notice to show cause should have been given before sending a warrant for attachment and sale of any movable property belonging to the assessee. </p><p>3. It is next contended by the learned counsel that there was no assessment order and the learned Magistrate was required to see the assessment order before he could proceed to issue the warrant for attachment and sale of any movable property. For this the learned counsel relied on a decision in Ganesh Narayana Hedge v. Commercial Tax Officer, Sirsi [[1976] 37 S.T.C. 567; (1976) 1 Kar. L.J. 233]. But the facts of that case were different and that ruling would have no effect in the present case. As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. That apart, no material was produced before the Magistrate even stating as to whether the petitioners were the assessees and as to whether any tax could at all be realised from them. The Magistrate did not apply his mind and issued the distress warrant. In these circumstances, it was held that the order of the Magistrate was illegal and could not be sustained. The position in the instant case is entirely different. The file of the Commercial Tax Officer does indicate that the petitioners themselves filed a return and calculated the amount of tax payable by them. The very same tax was demanded from the petitioners under a notice of demand. Firstly, they ought to have paid the tax in advance which they never did. Secondly, the demand notice was issued and again they failed to pay the tax. In view of sections 12 and 12-B of the Act, decidedly that was the amount due under the Act from such a dealer. As such, upon the plain language of section 13(3), the amount due was recoverable as if it were a fine imposed by a Magistrate. Thus, the said ruling relied upon by the learned counsel will not be of any help to the petitioners. An assessment order was not required, as under section 12-B, the tax was an amount due under the Act from such dealer. In fact, that was the amount pointed out by the dealer himself as payable by him. Therefore, the order of the learned Magistrate cannot be questioned on this ground that either he did not apply his mind or that he did not see the required documents before issuing the distress warrant. </p><p>4. The learned counsel then pointed out that the warrant issued was vague inasmuch as it did not specify the particular lorry which was to be attached. That was not the requirement of law. Under section 421, the warrant had to specify for the attachment and sale of any movable property belonging to the assessee. It could not be contemplated that the lorry or any other movable property would at all be available for attachment at the time the order was to be served upon the assessee. Therefore, no exception can be taken to the form of the warrant issued. It was rather the correct warrant and provided for all that was required under law to be provided for. </p><p>5. An ingenious argument was raised by the learned counsel for the petitioners with reference to section 421 of the Code of Criminal Procedure. It was stated that the learned Magistrate could not impose a fine exceeding Rs. 5,000 and, therefore, the issue of distress warrant for recovery of Rs. 67,200 by attachment and sale of property was an act beyond the jurisdiction of the Magistrate. For that, the learned counsel relied on a Division Bench case of this Court in Mohanlal Premchand v. Commercial Tax Officer [[1971] 28 S.T.C. 492; (1971) 1 Mys. L.J. 72]. But, that case related to the unamended section 13(3)(b). The language 'notwithstanding anything contained in the Code of Criminal Procedure, 1898' was not there before 1972. That is why, the Division Bench of this Court came to the conclusion that the Magistrate issuing the warrant of distress could not ask for recovery of an amount exceeding his own power to levy fine. The above-noted language used in sub-section (3)(b) rather makes the position clear. The limit imposed by the legislature on the levy of fine will no longer hold goods and the Magistrate would realise the amount 'as if it were a fine imposed by him' notwithstanding that the amount to be recovered is much more than the fine which could be imposed by him. </p><p>6. In this view of the matter, I do not find any defect in the order made by the learned Magistrate. As such, no revision is sustainable against that order. The petition is, therefore, dismissed. </p><p>7. Petition dismissed. <p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[1977]40STC320(Kar)', 'ratiodecidendi' => '', 'respondent' => 'The Commercial Tax Officer, Mysore Circle, Mysore', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ) $casename_url = 's-dasappa-company-vs-commercial-officer' $args = array( (int) 0 => '371016', (int) 1 => 's-dasappa-company-vs-commercial-officer' ) $url = 'https://sooperkanoon.com/case/amp/371016/s-dasappa-company-vs-commercial-officer' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>Lal, J. ', (int) 1 => '<p>1. This is a criminal revision under section 13(4) of the <a>Karnataka Sales Tax Act, 1957</a> (hereinafter to be referred to as the 'Act'), and it arises in the following circumstances : ', (int) 2 => '<p>M/s. S. Dasappa and Company is said to be a partnership firm having their place of business at Santepet, Kollegal, District Mysore. It is not disputed that they are assessees under the Act and, accordingly, under sections 12 and 12-B of the Act, they were liable to submit returns for assessment. They were also liable to pay the tax in advance. It is again beyond the pale of controversy that M/s. S. Dasappa and Company, the present petitioners, submitted the annual return under section 12 in form 4, but did not pay any tax in advance. The Commercial Tax Officer issued a notice of demand under form 3-A under rule 18(1)(c) made under the Act. Despite that notice of demand, the tax was not paid. Accordingly, it was considered by the department that the tax was an amount due under the Act from such dealer. Under section 13(3)(b), the Commercial Tax Officer filed an application before the Magistrate that the amount be realised as if it were a fine imposed by him. Thereafter, a distress warrant was issued by the Magistrate and a lorry belonging to the petitioners was attached. Against that order passed by learned Magistrate, the present revision is filed under sub-section (4) of section 13 of the Act. ', (int) 3 => '<p>2. The learned counsel for the petitioners contended that before issuing a distress warrant, the Magistrate was required to issue a notice to show cause. These is no requirement for such a prior notice under section 421 of the Code of Criminal Procedure. Similarly, there is no provision for a prior notice to show cause under section 13(4) of the Act. Therefore, the order of the learned Magistrate cannot be struck down merely, because he did not issue a notice to show cause. The petitioners have also submitted a return in form 4 and, on the basis of that return, the sales tax due in a sum of Rs. 67,200 was demanded. The records of the Commercial Tax Officer is brought for a perusal of the court by the learned State Public Prosecutor and from that record it is evident that the said return was filed by the petitioners and under a calculation made on the basis of their return, a sum of Rs. 67,200 was payable as sales tax. In fact, the petitioners have themselves mentioned that amount as payable by them for sales tax. Since under sections 12 and 12-B of the Act, the tax was payable in advance and the same was not paid, the demand notice under form 3-A was issued. In these circumstances, even principles of natural justice never required that a prior notice to show cause should have been given before sending a warrant for attachment and sale of any movable property belonging to the assessee. ', (int) 4 => '<p>3. It is next contended by the learned counsel that there was no assessment order and the learned Magistrate was required to see the assessment order before he could proceed to issue the warrant for attachment and sale of any movable property. For this the learned counsel relied on a decision in Ganesh Narayana Hedge v. Commercial Tax Officer, Sirsi [[1976] 37 S.T.C. 567; (1976) 1 Kar. L.J. 233]. But the facts of that case were different and that ruling would have no effect in the present case. As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. That apart, no material was produced before the Magistrate even stating as to whether the petitioners were the assessees and as to whether any tax could at all be realised from them. The Magistrate did not apply his mind and issued the distress warrant. In these circumstances, it was held that the order of the Magistrate was illegal and could not be sustained. The position in the instant case is entirely different. The file of the Commercial Tax Officer does indicate that the petitioners themselves filed a return and calculated the amount of tax payable by them. The very same tax was demanded from the petitioners under a notice of demand. Firstly, they ought to have paid the tax in advance which they never did. Secondly, the demand notice was issued and again they failed to pay the tax. In view of sections 12 and 12-B of the Act, decidedly that was the amount due under the Act from such a dealer. As such, upon the plain language of section 13(3), the amount due was recoverable as if it were a fine imposed by a Magistrate. Thus, the said ruling relied upon by the learned counsel will not be of any help to the petitioners. An assessment order was not required, as under section 12-B, the tax was an amount due under the Act from such dealer. In fact, that was the amount pointed out by the dealer himself as payable by him. Therefore, the order of the learned Magistrate cannot be questioned on this ground that either he did not apply his mind or that he did not see the required documents before issuing the distress warrant. ', (int) 5 => '<p>4. The learned counsel then pointed out that the warrant issued was vague inasmuch as it did not specify the particular lorry which was to be attached. That was not the requirement of law. Under section 421, the warrant had to specify for the attachment and sale of any movable property belonging to the assessee. It could not be contemplated that the lorry or any other movable property would at all be available for attachment at the time the order was to be served upon the assessee. Therefore, no exception can be taken to the form of the warrant issued. It was rather the correct warrant and provided for all that was required under law to be provided for. ', (int) 6 => '<p>5. An ingenious argument was raised by the learned counsel for the petitioners with reference to section 421 of the Code of Criminal Procedure. It was stated that the learned Magistrate could not impose a fine exceeding Rs. 5,000 and, therefore, the issue of distress warrant for recovery of Rs. 67,200 by attachment and sale of property was an act beyond the jurisdiction of the Magistrate. For that, the learned counsel relied on a Division Bench case of this Court in Mohanlal Premchand v. Commercial Tax Officer [[1971] 28 S.T.C. 492; (1971) 1 Mys. L.J. 72]. But, that case related to the unamended section 13(3)(b). The language 'notwithstanding anything contained in the Code of Criminal Procedure, 1898' was not there before 1972. That is why, the Division Bench of this Court came to the conclusion that the Magistrate issuing the warrant of distress could not ask for recovery of an amount exceeding his own power to levy fine. The above-noted language used in sub-section (3)(b) rather makes the position clear. The limit imposed by the legislature on the levy of fine will no longer hold goods and the Magistrate would realise the amount 'as if it were a fine imposed by him' notwithstanding that the amount to be recovered is much more than the fine which could be imposed by him. ', (int) 7 => '<p>6. In this view of the matter, I do not find any defect in the order made by the learned Magistrate. As such, no revision is sustainable against that order. The petition is, therefore, dismissed. ', (int) 8 => '<p>7. Petition dismissed. <p>', (int) 9 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 10 $i = (int) 4include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
3. It is next contended by the learned counsel that there was no assessment order and the learned Magistrate was required to see the assessment order before he could proceed to issue the warrant for attachment and sale of any movable property. For this the learned counsel relied on a decision in Ganesh Narayana Hedge v. Commercial Tax Officer, Sirsi [[1976] 37 S.T.C. 567; (1976) 1 Kar. L.J. 233]. But the facts of that case were different and that ruling would have no effect in the present case. As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. That apart, no material was produced before the Magistrate even stating as to whether the petitioners were the assessees and as to whether any tax could at all be realised from them. The Magistrate did not apply his mind and issued the distress warrant. In these circumstances, it was held that the order of the Magistrate was illegal and could not be sustained. The position in the instant case is entirely different. The file of the Commercial Tax Officer does indicate that the petitioners themselves filed a return and calculated the amount of tax payable by them. The very same tax was demanded from the petitioners under a notice of demand. Firstly, they ought to have paid the tax in advance which they never did. Secondly, the demand notice was issued and again they failed to pay the tax. In view of sections 12 and 12-B of the Act, decidedly that was the amount due under the Act from such a dealer. As such, upon the plain language of section 13(3), the amount due was recoverable as if it were a fine imposed by a Magistrate. Thus, the said ruling relied upon by the learned counsel will not be of any help to the petitioners. An assessment order was not required, as under section 12-B, the tax was an amount due under the Act from such dealer. In fact, that was the amount pointed out by the dealer himself as payable by him. Therefore, the order of the learned Magistrate cannot be questioned on this ground that either he did not apply his mind or that he did not see the required documents before issuing the distress warrant.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'S Dasappa and Company Vs the Commercial Tax Officer Mysore Circle Mysore - Citation 371016 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '371016', 'acts' => '<a href="/act/62040/karnataka-sales-tax-act-1957-complete-act">Karnataka Sales Tax Act, 1957</a> - Sections 12, 12B, 13(3) and 13(4)', 'appealno' => 'Criminal Revision Petition No. 468 of 1976', 'appellant' => 'S. Dasappa and Company', 'authreffered' => '', 'casename' => 'S. Dasappa and Company Vs. the Commercial Tax Officer, Mysore Circle, Mysore', 'casenote' => ' - COMPANIES ACT, 1956 [C.A. No. 1/1956]. Sections 529 & 529A & State Financial Corporation Act 1951, Section 29: [S.R. Bannurmath & A.N. Venugopala Gowda, JJ] Proceedings under Taking over of assets of the industrial concern in realisation of dues Sale of assets - Applicability of provisions of Section 529 and 529A Held, The Corporation cannot exercise its rights if the assets of the industrial concern, has already vested in the Company Court or if the Official Liquidator had been put in charge of the assets of the industrial concern. If the winding up proceedings are not set in motion, then, there is no legal impediment to the Corporation to take action under Section 29 of the S.F.C. Act, 1951 and permission of Company Court is not required to be obtained. In the absence of commencement of winding up proceedings, the provision of Section 529 and 529A of the Companies Act cannot be made applicable. The action of the Corporation under Section 29 of the S.F.C. Act is lawful. Further, the Corporation took over only the assets and not the management. The money realised by effecting sale under Sub-Section (2) of Section 29, cannot be apportioned or ordered to be paid to the workmen of the industrial concern, when the industrial concern is not under the winding up proceedings, in terms of the provisions under the Companies Act. The Corporation cannot be held liable either jointly or severally to pay the closure compensation or other claims of the workmen. The industry is liable to pay the wages of the lockout period and the closure compensation to the workmen. -- STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. -- STATE FINANCIAL CORPORATIONS ACT, 1951. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. - As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. Secondly, the demand notice was issued and again they failed to pay the tax.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'S.D. Chhatre, Adv.', 'counseldef' => 'T.J. Chouta, High Court Government Pleader', 'court' => 'Karnataka', 'court_type' => 'HC', 'decidedon' => '1977-02-02', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => 'D.B. Lal, J.', 'judgement' => 'ORDER<p style="text-align: justify;">Lal, J. </p><p style="text-align: justify;">1. This is a criminal revision under section 13(4) of the <a href="/act/62040/karnataka-sales-tax-act-1957-complete-act">Karnataka Sales Tax Act, 1957</a> (hereinafter to be referred to as the 'Act'), and it arises in the following circumstances : </p><p style="text-align: justify;">M/s. S. Dasappa and Company is said to be a partnership firm having their place of business at Santepet, Kollegal, District Mysore. It is not disputed that they are assessees under the Act and, accordingly, under sections 12 and 12-B of the Act, they were liable to submit returns for assessment. They were also liable to pay the tax in advance. It is again beyond the pale of controversy that M/s. S. Dasappa and Company, the present petitioners, submitted the annual return under section 12 in form 4, but did not pay any tax in advance. The Commercial Tax Officer issued a notice of demand under form 3-A under rule 18(1)(c) made under the Act. Despite that notice of demand, the tax was not paid. Accordingly, it was considered by the department that the tax was an amount due under the Act from such dealer. Under section 13(3)(b), the Commercial Tax Officer filed an application before the Magistrate that the amount be realised as if it were a fine imposed by him. Thereafter, a distress warrant was issued by the Magistrate and a lorry belonging to the petitioners was attached. Against that order passed by learned Magistrate, the present revision is filed under sub-section (4) of section 13 of the Act. </p><p style="text-align: justify;">2. The learned counsel for the petitioners contended that before issuing a distress warrant, the Magistrate was required to issue a notice to show cause. These is no requirement for such a prior notice under section 421 of the Code of Criminal Procedure. Similarly, there is no provision for a prior notice to show cause under section 13(4) of the Act. Therefore, the order of the learned Magistrate cannot be struck down merely, because he did not issue a notice to show cause. The petitioners have also submitted a return in form 4 and, on the basis of that return, the sales tax due in a sum of Rs. 67,200 was demanded. The records of the Commercial Tax Officer is brought for a perusal of the court by the learned State Public Prosecutor and from that record it is evident that the said return was filed by the petitioners and under a calculation made on the basis of their return, a sum of Rs. 67,200 was payable as sales tax. In fact, the petitioners have themselves mentioned that amount as payable by them for sales tax. Since under sections 12 and 12-B of the Act, the tax was payable in advance and the same was not paid, the demand notice under form 3-A was issued. In these circumstances, even principles of natural justice never required that a prior notice to show cause should have been given before sending a warrant for attachment and sale of any movable property belonging to the assessee. </p><p style="text-align: justify;">3. It is next contended by the learned counsel that there was no assessment order and the learned Magistrate was required to see the assessment order before he could proceed to issue the warrant for attachment and sale of any movable property. For this the learned counsel relied on a decision in Ganesh Narayana Hedge v. Commercial Tax Officer, Sirsi [[1976] 37 S.T.C. 567; (1976) 1 Kar. L.J. 233]. But the facts of that case were different and that ruling would have no effect in the present case. As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. That apart, no material was produced before the Magistrate even stating as to whether the petitioners were the assessees and as to whether any tax could at all be realised from them. The Magistrate did not apply his mind and issued the distress warrant. In these circumstances, it was held that the order of the Magistrate was illegal and could not be sustained. The position in the instant case is entirely different. The file of the Commercial Tax Officer does indicate that the petitioners themselves filed a return and calculated the amount of tax payable by them. The very same tax was demanded from the petitioners under a notice of demand. Firstly, they ought to have paid the tax in advance which they never did. Secondly, the demand notice was issued and again they failed to pay the tax. In view of sections 12 and 12-B of the Act, decidedly that was the amount due under the Act from such a dealer. As such, upon the plain language of section 13(3), the amount due was recoverable as if it were a fine imposed by a Magistrate. Thus, the said ruling relied upon by the learned counsel will not be of any help to the petitioners. An assessment order was not required, as under section 12-B, the tax was an amount due under the Act from such dealer. In fact, that was the amount pointed out by the dealer himself as payable by him. Therefore, the order of the learned Magistrate cannot be questioned on this ground that either he did not apply his mind or that he did not see the required documents before issuing the distress warrant. </p><p style="text-align: justify;">4. The learned counsel then pointed out that the warrant issued was vague inasmuch as it did not specify the particular lorry which was to be attached. That was not the requirement of law. Under section 421, the warrant had to specify for the attachment and sale of any movable property belonging to the assessee. It could not be contemplated that the lorry or any other movable property would at all be available for attachment at the time the order was to be served upon the assessee. Therefore, no exception can be taken to the form of the warrant issued. It was rather the correct warrant and provided for all that was required under law to be provided for. </p><p style="text-align: justify;">5. An ingenious argument was raised by the learned counsel for the petitioners with reference to section 421 of the Code of Criminal Procedure. It was stated that the learned Magistrate could not impose a fine exceeding Rs. 5,000 and, therefore, the issue of distress warrant for recovery of Rs. 67,200 by attachment and sale of property was an act beyond the jurisdiction of the Magistrate. For that, the learned counsel relied on a Division Bench case of this Court in Mohanlal Premchand v. Commercial Tax Officer [[1971] 28 S.T.C. 492; (1971) 1 Mys. L.J. 72]. But, that case related to the unamended section 13(3)(b). The language 'notwithstanding anything contained in the Code of Criminal Procedure, 1898' was not there before 1972. That is why, the Division Bench of this Court came to the conclusion that the Magistrate issuing the warrant of distress could not ask for recovery of an amount exceeding his own power to levy fine. The above-noted language used in sub-section (3)(b) rather makes the position clear. The limit imposed by the legislature on the levy of fine will no longer hold goods and the Magistrate would realise the amount 'as if it were a fine imposed by him' notwithstanding that the amount to be recovered is much more than the fine which could be imposed by him. </p><p style="text-align: justify;">6. In this view of the matter, I do not find any defect in the order made by the learned Magistrate. As such, no revision is sustainable against that order. The petition is, therefore, dismissed. </p><p style="text-align: justify;">7. Petition dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[1977]40STC320(Kar)', 'ratiodecidendi' => '', 'respondent' => 'The Commercial Tax Officer, Mysore Circle, Mysore', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ), 'casename_url' => 's-dasappa-company-vs-commercial-officer', 'args' => array( (int) 0 => '371016', (int) 1 => 's-dasappa-company-vs-commercial-officer' ) ) $title_for_layout = 'S Dasappa and Company Vs the Commercial Tax Officer Mysore Circle Mysore - Citation 371016 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '371016', 'acts' => '<a href="/act/62040/karnataka-sales-tax-act-1957-complete-act">Karnataka Sales Tax Act, 1957</a> - Sections 12, 12B, 13(3) and 13(4)', 'appealno' => 'Criminal Revision Petition No. 468 of 1976', 'appellant' => 'S. Dasappa and Company', 'authreffered' => '', 'casename' => 'S. Dasappa and Company Vs. the Commercial Tax Officer, Mysore Circle, Mysore', 'casenote' => ' - COMPANIES ACT, 1956 [C.A. No. 1/1956]. Sections 529 & 529A & State Financial Corporation Act 1951, Section 29: [S.R. Bannurmath & A.N. Venugopala Gowda, JJ] Proceedings under Taking over of assets of the industrial concern in realisation of dues Sale of assets - Applicability of provisions of Section 529 and 529A Held, The Corporation cannot exercise its rights if the assets of the industrial concern, has already vested in the Company Court or if the Official Liquidator had been put in charge of the assets of the industrial concern. If the winding up proceedings are not set in motion, then, there is no legal impediment to the Corporation to take action under Section 29 of the S.F.C. Act, 1951 and permission of Company Court is not required to be obtained. In the absence of commencement of winding up proceedings, the provision of Section 529 and 529A of the Companies Act cannot be made applicable. The action of the Corporation under Section 29 of the S.F.C. Act is lawful. Further, the Corporation took over only the assets and not the management. The money realised by effecting sale under Sub-Section (2) of Section 29, cannot be apportioned or ordered to be paid to the workmen of the industrial concern, when the industrial concern is not under the winding up proceedings, in terms of the provisions under the Companies Act. The Corporation cannot be held liable either jointly or severally to pay the closure compensation or other claims of the workmen. The industry is liable to pay the wages of the lockout period and the closure compensation to the workmen. -- STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. -- STATE FINANCIAL CORPORATIONS ACT, 1951. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. - As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. Secondly, the demand notice was issued and again they failed to pay the tax.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'S.D. Chhatre, Adv.', 'counseldef' => 'T.J. Chouta, High Court Government Pleader', 'court' => 'Karnataka', 'court_type' => 'HC', 'decidedon' => '1977-02-02', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => 'D.B. Lal, J.', 'judgement' => 'ORDER<p>Lal, J. </p><p>1. This is a criminal revision under section 13(4) of the <a>Karnataka Sales Tax Act, 1957</a> (hereinafter to be referred to as the 'Act'), and it arises in the following circumstances : </p><p>M/s. S. Dasappa and Company is said to be a partnership firm having their place of business at Santepet, Kollegal, District Mysore. It is not disputed that they are assessees under the Act and, accordingly, under sections 12 and 12-B of the Act, they were liable to submit returns for assessment. They were also liable to pay the tax in advance. It is again beyond the pale of controversy that M/s. S. Dasappa and Company, the present petitioners, submitted the annual return under section 12 in form 4, but did not pay any tax in advance. The Commercial Tax Officer issued a notice of demand under form 3-A under rule 18(1)(c) made under the Act. Despite that notice of demand, the tax was not paid. Accordingly, it was considered by the department that the tax was an amount due under the Act from such dealer. Under section 13(3)(b), the Commercial Tax Officer filed an application before the Magistrate that the amount be realised as if it were a fine imposed by him. Thereafter, a distress warrant was issued by the Magistrate and a lorry belonging to the petitioners was attached. Against that order passed by learned Magistrate, the present revision is filed under sub-section (4) of section 13 of the Act. </p><p>2. The learned counsel for the petitioners contended that before issuing a distress warrant, the Magistrate was required to issue a notice to show cause. These is no requirement for such a prior notice under section 421 of the Code of Criminal Procedure. Similarly, there is no provision for a prior notice to show cause under section 13(4) of the Act. Therefore, the order of the learned Magistrate cannot be struck down merely, because he did not issue a notice to show cause. The petitioners have also submitted a return in form 4 and, on the basis of that return, the sales tax due in a sum of Rs. 67,200 was demanded. The records of the Commercial Tax Officer is brought for a perusal of the court by the learned State Public Prosecutor and from that record it is evident that the said return was filed by the petitioners and under a calculation made on the basis of their return, a sum of Rs. 67,200 was payable as sales tax. In fact, the petitioners have themselves mentioned that amount as payable by them for sales tax. Since under sections 12 and 12-B of the Act, the tax was payable in advance and the same was not paid, the demand notice under form 3-A was issued. In these circumstances, even principles of natural justice never required that a prior notice to show cause should have been given before sending a warrant for attachment and sale of any movable property belonging to the assessee. </p><p>3. It is next contended by the learned counsel that there was no assessment order and the learned Magistrate was required to see the assessment order before he could proceed to issue the warrant for attachment and sale of any movable property. For this the learned counsel relied on a decision in Ganesh Narayana Hedge v. Commercial Tax Officer, Sirsi [[1976] 37 S.T.C. 567; (1976) 1 Kar. L.J. 233]. But the facts of that case were different and that ruling would have no effect in the present case. As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. That apart, no material was produced before the Magistrate even stating as to whether the petitioners were the assessees and as to whether any tax could at all be realised from them. The Magistrate did not apply his mind and issued the distress warrant. In these circumstances, it was held that the order of the Magistrate was illegal and could not be sustained. The position in the instant case is entirely different. The file of the Commercial Tax Officer does indicate that the petitioners themselves filed a return and calculated the amount of tax payable by them. The very same tax was demanded from the petitioners under a notice of demand. Firstly, they ought to have paid the tax in advance which they never did. Secondly, the demand notice was issued and again they failed to pay the tax. In view of sections 12 and 12-B of the Act, decidedly that was the amount due under the Act from such a dealer. As such, upon the plain language of section 13(3), the amount due was recoverable as if it were a fine imposed by a Magistrate. Thus, the said ruling relied upon by the learned counsel will not be of any help to the petitioners. An assessment order was not required, as under section 12-B, the tax was an amount due under the Act from such dealer. In fact, that was the amount pointed out by the dealer himself as payable by him. Therefore, the order of the learned Magistrate cannot be questioned on this ground that either he did not apply his mind or that he did not see the required documents before issuing the distress warrant. </p><p>4. The learned counsel then pointed out that the warrant issued was vague inasmuch as it did not specify the particular lorry which was to be attached. That was not the requirement of law. Under section 421, the warrant had to specify for the attachment and sale of any movable property belonging to the assessee. It could not be contemplated that the lorry or any other movable property would at all be available for attachment at the time the order was to be served upon the assessee. Therefore, no exception can be taken to the form of the warrant issued. It was rather the correct warrant and provided for all that was required under law to be provided for. </p><p>5. An ingenious argument was raised by the learned counsel for the petitioners with reference to section 421 of the Code of Criminal Procedure. It was stated that the learned Magistrate could not impose a fine exceeding Rs. 5,000 and, therefore, the issue of distress warrant for recovery of Rs. 67,200 by attachment and sale of property was an act beyond the jurisdiction of the Magistrate. For that, the learned counsel relied on a Division Bench case of this Court in Mohanlal Premchand v. Commercial Tax Officer [[1971] 28 S.T.C. 492; (1971) 1 Mys. L.J. 72]. But, that case related to the unamended section 13(3)(b). The language 'notwithstanding anything contained in the Code of Criminal Procedure, 1898' was not there before 1972. That is why, the Division Bench of this Court came to the conclusion that the Magistrate issuing the warrant of distress could not ask for recovery of an amount exceeding his own power to levy fine. The above-noted language used in sub-section (3)(b) rather makes the position clear. The limit imposed by the legislature on the levy of fine will no longer hold goods and the Magistrate would realise the amount 'as if it were a fine imposed by him' notwithstanding that the amount to be recovered is much more than the fine which could be imposed by him. </p><p>6. In this view of the matter, I do not find any defect in the order made by the learned Magistrate. As such, no revision is sustainable against that order. The petition is, therefore, dismissed. </p><p>7. Petition dismissed. <p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[1977]40STC320(Kar)', 'ratiodecidendi' => '', 'respondent' => 'The Commercial Tax Officer, Mysore Circle, Mysore', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ) $casename_url = 's-dasappa-company-vs-commercial-officer' $args = array( (int) 0 => '371016', (int) 1 => 's-dasappa-company-vs-commercial-officer' ) $url = 'https://sooperkanoon.com/case/amp/371016/s-dasappa-company-vs-commercial-officer' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>Lal, J. ', (int) 1 => '<p>1. This is a criminal revision under section 13(4) of the <a>Karnataka Sales Tax Act, 1957</a> (hereinafter to be referred to as the 'Act'), and it arises in the following circumstances : ', (int) 2 => '<p>M/s. S. Dasappa and Company is said to be a partnership firm having their place of business at Santepet, Kollegal, District Mysore. It is not disputed that they are assessees under the Act and, accordingly, under sections 12 and 12-B of the Act, they were liable to submit returns for assessment. They were also liable to pay the tax in advance. It is again beyond the pale of controversy that M/s. S. Dasappa and Company, the present petitioners, submitted the annual return under section 12 in form 4, but did not pay any tax in advance. The Commercial Tax Officer issued a notice of demand under form 3-A under rule 18(1)(c) made under the Act. Despite that notice of demand, the tax was not paid. Accordingly, it was considered by the department that the tax was an amount due under the Act from such dealer. Under section 13(3)(b), the Commercial Tax Officer filed an application before the Magistrate that the amount be realised as if it were a fine imposed by him. Thereafter, a distress warrant was issued by the Magistrate and a lorry belonging to the petitioners was attached. Against that order passed by learned Magistrate, the present revision is filed under sub-section (4) of section 13 of the Act. ', (int) 3 => '<p>2. The learned counsel for the petitioners contended that before issuing a distress warrant, the Magistrate was required to issue a notice to show cause. These is no requirement for such a prior notice under section 421 of the Code of Criminal Procedure. Similarly, there is no provision for a prior notice to show cause under section 13(4) of the Act. Therefore, the order of the learned Magistrate cannot be struck down merely, because he did not issue a notice to show cause. The petitioners have also submitted a return in form 4 and, on the basis of that return, the sales tax due in a sum of Rs. 67,200 was demanded. The records of the Commercial Tax Officer is brought for a perusal of the court by the learned State Public Prosecutor and from that record it is evident that the said return was filed by the petitioners and under a calculation made on the basis of their return, a sum of Rs. 67,200 was payable as sales tax. In fact, the petitioners have themselves mentioned that amount as payable by them for sales tax. Since under sections 12 and 12-B of the Act, the tax was payable in advance and the same was not paid, the demand notice under form 3-A was issued. In these circumstances, even principles of natural justice never required that a prior notice to show cause should have been given before sending a warrant for attachment and sale of any movable property belonging to the assessee. ', (int) 4 => '<p>3. It is next contended by the learned counsel that there was no assessment order and the learned Magistrate was required to see the assessment order before he could proceed to issue the warrant for attachment and sale of any movable property. For this the learned counsel relied on a decision in Ganesh Narayana Hedge v. Commercial Tax Officer, Sirsi [[1976] 37 S.T.C. 567; (1976) 1 Kar. L.J. 233]. But the facts of that case were different and that ruling would have no effect in the present case. As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. That apart, no material was produced before the Magistrate even stating as to whether the petitioners were the assessees and as to whether any tax could at all be realised from them. The Magistrate did not apply his mind and issued the distress warrant. In these circumstances, it was held that the order of the Magistrate was illegal and could not be sustained. The position in the instant case is entirely different. The file of the Commercial Tax Officer does indicate that the petitioners themselves filed a return and calculated the amount of tax payable by them. The very same tax was demanded from the petitioners under a notice of demand. Firstly, they ought to have paid the tax in advance which they never did. Secondly, the demand notice was issued and again they failed to pay the tax. In view of sections 12 and 12-B of the Act, decidedly that was the amount due under the Act from such a dealer. As such, upon the plain language of section 13(3), the amount due was recoverable as if it were a fine imposed by a Magistrate. Thus, the said ruling relied upon by the learned counsel will not be of any help to the petitioners. An assessment order was not required, as under section 12-B, the tax was an amount due under the Act from such dealer. In fact, that was the amount pointed out by the dealer himself as payable by him. Therefore, the order of the learned Magistrate cannot be questioned on this ground that either he did not apply his mind or that he did not see the required documents before issuing the distress warrant. ', (int) 5 => '<p>4. The learned counsel then pointed out that the warrant issued was vague inasmuch as it did not specify the particular lorry which was to be attached. That was not the requirement of law. Under section 421, the warrant had to specify for the attachment and sale of any movable property belonging to the assessee. It could not be contemplated that the lorry or any other movable property would at all be available for attachment at the time the order was to be served upon the assessee. Therefore, no exception can be taken to the form of the warrant issued. It was rather the correct warrant and provided for all that was required under law to be provided for. ', (int) 6 => '<p>5. An ingenious argument was raised by the learned counsel for the petitioners with reference to section 421 of the Code of Criminal Procedure. It was stated that the learned Magistrate could not impose a fine exceeding Rs. 5,000 and, therefore, the issue of distress warrant for recovery of Rs. 67,200 by attachment and sale of property was an act beyond the jurisdiction of the Magistrate. For that, the learned counsel relied on a Division Bench case of this Court in Mohanlal Premchand v. Commercial Tax Officer [[1971] 28 S.T.C. 492; (1971) 1 Mys. L.J. 72]. But, that case related to the unamended section 13(3)(b). The language 'notwithstanding anything contained in the Code of Criminal Procedure, 1898' was not there before 1972. That is why, the Division Bench of this Court came to the conclusion that the Magistrate issuing the warrant of distress could not ask for recovery of an amount exceeding his own power to levy fine. The above-noted language used in sub-section (3)(b) rather makes the position clear. The limit imposed by the legislature on the levy of fine will no longer hold goods and the Magistrate would realise the amount 'as if it were a fine imposed by him' notwithstanding that the amount to be recovered is much more than the fine which could be imposed by him. ', (int) 7 => '<p>6. In this view of the matter, I do not find any defect in the order made by the learned Magistrate. As such, no revision is sustainable against that order. The petition is, therefore, dismissed. ', (int) 8 => '<p>7. Petition dismissed. <p>', (int) 9 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 10 $i = (int) 5include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
4. The learned counsel then pointed out that the warrant issued was vague inasmuch as it did not specify the particular lorry which was to be attached. That was not the requirement of law. Under section 421, the warrant had to specify for the attachment and sale of any movable property belonging to the assessee. It could not be contemplated that the lorry or any other movable property would at all be available for attachment at the time the order was to be served upon the assessee. Therefore, no exception can be taken to the form of the warrant issued. It was rather the correct warrant and provided for all that was required under law to be provided for.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'S Dasappa and Company Vs the Commercial Tax Officer Mysore Circle Mysore - Citation 371016 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '371016', 'acts' => '<a href="/act/62040/karnataka-sales-tax-act-1957-complete-act">Karnataka Sales Tax Act, 1957</a> - Sections 12, 12B, 13(3) and 13(4)', 'appealno' => 'Criminal Revision Petition No. 468 of 1976', 'appellant' => 'S. Dasappa and Company', 'authreffered' => '', 'casename' => 'S. Dasappa and Company Vs. the Commercial Tax Officer, Mysore Circle, Mysore', 'casenote' => ' - COMPANIES ACT, 1956 [C.A. No. 1/1956]. Sections 529 & 529A & State Financial Corporation Act 1951, Section 29: [S.R. Bannurmath & A.N. Venugopala Gowda, JJ] Proceedings under Taking over of assets of the industrial concern in realisation of dues Sale of assets - Applicability of provisions of Section 529 and 529A Held, The Corporation cannot exercise its rights if the assets of the industrial concern, has already vested in the Company Court or if the Official Liquidator had been put in charge of the assets of the industrial concern. If the winding up proceedings are not set in motion, then, there is no legal impediment to the Corporation to take action under Section 29 of the S.F.C. Act, 1951 and permission of Company Court is not required to be obtained. In the absence of commencement of winding up proceedings, the provision of Section 529 and 529A of the Companies Act cannot be made applicable. The action of the Corporation under Section 29 of the S.F.C. Act is lawful. Further, the Corporation took over only the assets and not the management. The money realised by effecting sale under Sub-Section (2) of Section 29, cannot be apportioned or ordered to be paid to the workmen of the industrial concern, when the industrial concern is not under the winding up proceedings, in terms of the provisions under the Companies Act. The Corporation cannot be held liable either jointly or severally to pay the closure compensation or other claims of the workmen. The industry is liable to pay the wages of the lockout period and the closure compensation to the workmen. -- STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. -- STATE FINANCIAL CORPORATIONS ACT, 1951. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. - As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. Secondly, the demand notice was issued and again they failed to pay the tax.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'S.D. Chhatre, Adv.', 'counseldef' => 'T.J. Chouta, High Court Government Pleader', 'court' => 'Karnataka', 'court_type' => 'HC', 'decidedon' => '1977-02-02', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => 'D.B. Lal, J.', 'judgement' => 'ORDER<p style="text-align: justify;">Lal, J. </p><p style="text-align: justify;">1. This is a criminal revision under section 13(4) of the <a href="/act/62040/karnataka-sales-tax-act-1957-complete-act">Karnataka Sales Tax Act, 1957</a> (hereinafter to be referred to as the 'Act'), and it arises in the following circumstances : </p><p style="text-align: justify;">M/s. S. Dasappa and Company is said to be a partnership firm having their place of business at Santepet, Kollegal, District Mysore. It is not disputed that they are assessees under the Act and, accordingly, under sections 12 and 12-B of the Act, they were liable to submit returns for assessment. They were also liable to pay the tax in advance. It is again beyond the pale of controversy that M/s. S. Dasappa and Company, the present petitioners, submitted the annual return under section 12 in form 4, but did not pay any tax in advance. The Commercial Tax Officer issued a notice of demand under form 3-A under rule 18(1)(c) made under the Act. Despite that notice of demand, the tax was not paid. Accordingly, it was considered by the department that the tax was an amount due under the Act from such dealer. Under section 13(3)(b), the Commercial Tax Officer filed an application before the Magistrate that the amount be realised as if it were a fine imposed by him. Thereafter, a distress warrant was issued by the Magistrate and a lorry belonging to the petitioners was attached. Against that order passed by learned Magistrate, the present revision is filed under sub-section (4) of section 13 of the Act. </p><p style="text-align: justify;">2. The learned counsel for the petitioners contended that before issuing a distress warrant, the Magistrate was required to issue a notice to show cause. These is no requirement for such a prior notice under section 421 of the Code of Criminal Procedure. Similarly, there is no provision for a prior notice to show cause under section 13(4) of the Act. Therefore, the order of the learned Magistrate cannot be struck down merely, because he did not issue a notice to show cause. The petitioners have also submitted a return in form 4 and, on the basis of that return, the sales tax due in a sum of Rs. 67,200 was demanded. The records of the Commercial Tax Officer is brought for a perusal of the court by the learned State Public Prosecutor and from that record it is evident that the said return was filed by the petitioners and under a calculation made on the basis of their return, a sum of Rs. 67,200 was payable as sales tax. In fact, the petitioners have themselves mentioned that amount as payable by them for sales tax. Since under sections 12 and 12-B of the Act, the tax was payable in advance and the same was not paid, the demand notice under form 3-A was issued. In these circumstances, even principles of natural justice never required that a prior notice to show cause should have been given before sending a warrant for attachment and sale of any movable property belonging to the assessee. </p><p style="text-align: justify;">3. It is next contended by the learned counsel that there was no assessment order and the learned Magistrate was required to see the assessment order before he could proceed to issue the warrant for attachment and sale of any movable property. For this the learned counsel relied on a decision in Ganesh Narayana Hedge v. Commercial Tax Officer, Sirsi [[1976] 37 S.T.C. 567; (1976) 1 Kar. L.J. 233]. But the facts of that case were different and that ruling would have no effect in the present case. As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. That apart, no material was produced before the Magistrate even stating as to whether the petitioners were the assessees and as to whether any tax could at all be realised from them. The Magistrate did not apply his mind and issued the distress warrant. In these circumstances, it was held that the order of the Magistrate was illegal and could not be sustained. The position in the instant case is entirely different. The file of the Commercial Tax Officer does indicate that the petitioners themselves filed a return and calculated the amount of tax payable by them. The very same tax was demanded from the petitioners under a notice of demand. Firstly, they ought to have paid the tax in advance which they never did. Secondly, the demand notice was issued and again they failed to pay the tax. In view of sections 12 and 12-B of the Act, decidedly that was the amount due under the Act from such a dealer. As such, upon the plain language of section 13(3), the amount due was recoverable as if it were a fine imposed by a Magistrate. Thus, the said ruling relied upon by the learned counsel will not be of any help to the petitioners. An assessment order was not required, as under section 12-B, the tax was an amount due under the Act from such dealer. In fact, that was the amount pointed out by the dealer himself as payable by him. Therefore, the order of the learned Magistrate cannot be questioned on this ground that either he did not apply his mind or that he did not see the required documents before issuing the distress warrant. </p><p style="text-align: justify;">4. The learned counsel then pointed out that the warrant issued was vague inasmuch as it did not specify the particular lorry which was to be attached. That was not the requirement of law. Under section 421, the warrant had to specify for the attachment and sale of any movable property belonging to the assessee. It could not be contemplated that the lorry or any other movable property would at all be available for attachment at the time the order was to be served upon the assessee. Therefore, no exception can be taken to the form of the warrant issued. It was rather the correct warrant and provided for all that was required under law to be provided for. </p><p style="text-align: justify;">5. An ingenious argument was raised by the learned counsel for the petitioners with reference to section 421 of the Code of Criminal Procedure. It was stated that the learned Magistrate could not impose a fine exceeding Rs. 5,000 and, therefore, the issue of distress warrant for recovery of Rs. 67,200 by attachment and sale of property was an act beyond the jurisdiction of the Magistrate. For that, the learned counsel relied on a Division Bench case of this Court in Mohanlal Premchand v. Commercial Tax Officer [[1971] 28 S.T.C. 492; (1971) 1 Mys. L.J. 72]. But, that case related to the unamended section 13(3)(b). The language 'notwithstanding anything contained in the Code of Criminal Procedure, 1898' was not there before 1972. That is why, the Division Bench of this Court came to the conclusion that the Magistrate issuing the warrant of distress could not ask for recovery of an amount exceeding his own power to levy fine. The above-noted language used in sub-section (3)(b) rather makes the position clear. The limit imposed by the legislature on the levy of fine will no longer hold goods and the Magistrate would realise the amount 'as if it were a fine imposed by him' notwithstanding that the amount to be recovered is much more than the fine which could be imposed by him. </p><p style="text-align: justify;">6. In this view of the matter, I do not find any defect in the order made by the learned Magistrate. As such, no revision is sustainable against that order. The petition is, therefore, dismissed. </p><p style="text-align: justify;">7. Petition dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[1977]40STC320(Kar)', 'ratiodecidendi' => '', 'respondent' => 'The Commercial Tax Officer, Mysore Circle, Mysore', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ), 'casename_url' => 's-dasappa-company-vs-commercial-officer', 'args' => array( (int) 0 => '371016', (int) 1 => 's-dasappa-company-vs-commercial-officer' ) ) $title_for_layout = 'S Dasappa and Company Vs the Commercial Tax Officer Mysore Circle Mysore - Citation 371016 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '371016', 'acts' => '<a href="/act/62040/karnataka-sales-tax-act-1957-complete-act">Karnataka Sales Tax Act, 1957</a> - Sections 12, 12B, 13(3) and 13(4)', 'appealno' => 'Criminal Revision Petition No. 468 of 1976', 'appellant' => 'S. Dasappa and Company', 'authreffered' => '', 'casename' => 'S. Dasappa and Company Vs. the Commercial Tax Officer, Mysore Circle, Mysore', 'casenote' => ' - COMPANIES ACT, 1956 [C.A. No. 1/1956]. Sections 529 & 529A & State Financial Corporation Act 1951, Section 29: [S.R. Bannurmath & A.N. Venugopala Gowda, JJ] Proceedings under Taking over of assets of the industrial concern in realisation of dues Sale of assets - Applicability of provisions of Section 529 and 529A Held, The Corporation cannot exercise its rights if the assets of the industrial concern, has already vested in the Company Court or if the Official Liquidator had been put in charge of the assets of the industrial concern. If the winding up proceedings are not set in motion, then, there is no legal impediment to the Corporation to take action under Section 29 of the S.F.C. Act, 1951 and permission of Company Court is not required to be obtained. In the absence of commencement of winding up proceedings, the provision of Section 529 and 529A of the Companies Act cannot be made applicable. The action of the Corporation under Section 29 of the S.F.C. Act is lawful. Further, the Corporation took over only the assets and not the management. The money realised by effecting sale under Sub-Section (2) of Section 29, cannot be apportioned or ordered to be paid to the workmen of the industrial concern, when the industrial concern is not under the winding up proceedings, in terms of the provisions under the Companies Act. The Corporation cannot be held liable either jointly or severally to pay the closure compensation or other claims of the workmen. The industry is liable to pay the wages of the lockout period and the closure compensation to the workmen. -- STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. -- STATE FINANCIAL CORPORATIONS ACT, 1951. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. - As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. Secondly, the demand notice was issued and again they failed to pay the tax.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'S.D. Chhatre, Adv.', 'counseldef' => 'T.J. Chouta, High Court Government Pleader', 'court' => 'Karnataka', 'court_type' => 'HC', 'decidedon' => '1977-02-02', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => 'D.B. Lal, J.', 'judgement' => 'ORDER<p>Lal, J. </p><p>1. This is a criminal revision under section 13(4) of the <a>Karnataka Sales Tax Act, 1957</a> (hereinafter to be referred to as the 'Act'), and it arises in the following circumstances : </p><p>M/s. S. Dasappa and Company is said to be a partnership firm having their place of business at Santepet, Kollegal, District Mysore. It is not disputed that they are assessees under the Act and, accordingly, under sections 12 and 12-B of the Act, they were liable to submit returns for assessment. They were also liable to pay the tax in advance. It is again beyond the pale of controversy that M/s. S. Dasappa and Company, the present petitioners, submitted the annual return under section 12 in form 4, but did not pay any tax in advance. The Commercial Tax Officer issued a notice of demand under form 3-A under rule 18(1)(c) made under the Act. Despite that notice of demand, the tax was not paid. Accordingly, it was considered by the department that the tax was an amount due under the Act from such dealer. Under section 13(3)(b), the Commercial Tax Officer filed an application before the Magistrate that the amount be realised as if it were a fine imposed by him. Thereafter, a distress warrant was issued by the Magistrate and a lorry belonging to the petitioners was attached. Against that order passed by learned Magistrate, the present revision is filed under sub-section (4) of section 13 of the Act. </p><p>2. The learned counsel for the petitioners contended that before issuing a distress warrant, the Magistrate was required to issue a notice to show cause. These is no requirement for such a prior notice under section 421 of the Code of Criminal Procedure. Similarly, there is no provision for a prior notice to show cause under section 13(4) of the Act. Therefore, the order of the learned Magistrate cannot be struck down merely, because he did not issue a notice to show cause. The petitioners have also submitted a return in form 4 and, on the basis of that return, the sales tax due in a sum of Rs. 67,200 was demanded. The records of the Commercial Tax Officer is brought for a perusal of the court by the learned State Public Prosecutor and from that record it is evident that the said return was filed by the petitioners and under a calculation made on the basis of their return, a sum of Rs. 67,200 was payable as sales tax. In fact, the petitioners have themselves mentioned that amount as payable by them for sales tax. Since under sections 12 and 12-B of the Act, the tax was payable in advance and the same was not paid, the demand notice under form 3-A was issued. In these circumstances, even principles of natural justice never required that a prior notice to show cause should have been given before sending a warrant for attachment and sale of any movable property belonging to the assessee. </p><p>3. It is next contended by the learned counsel that there was no assessment order and the learned Magistrate was required to see the assessment order before he could proceed to issue the warrant for attachment and sale of any movable property. For this the learned counsel relied on a decision in Ganesh Narayana Hedge v. Commercial Tax Officer, Sirsi [[1976] 37 S.T.C. 567; (1976) 1 Kar. L.J. 233]. But the facts of that case were different and that ruling would have no effect in the present case. As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. That apart, no material was produced before the Magistrate even stating as to whether the petitioners were the assessees and as to whether any tax could at all be realised from them. The Magistrate did not apply his mind and issued the distress warrant. In these circumstances, it was held that the order of the Magistrate was illegal and could not be sustained. The position in the instant case is entirely different. The file of the Commercial Tax Officer does indicate that the petitioners themselves filed a return and calculated the amount of tax payable by them. The very same tax was demanded from the petitioners under a notice of demand. Firstly, they ought to have paid the tax in advance which they never did. Secondly, the demand notice was issued and again they failed to pay the tax. In view of sections 12 and 12-B of the Act, decidedly that was the amount due under the Act from such a dealer. As such, upon the plain language of section 13(3), the amount due was recoverable as if it were a fine imposed by a Magistrate. Thus, the said ruling relied upon by the learned counsel will not be of any help to the petitioners. An assessment order was not required, as under section 12-B, the tax was an amount due under the Act from such dealer. In fact, that was the amount pointed out by the dealer himself as payable by him. Therefore, the order of the learned Magistrate cannot be questioned on this ground that either he did not apply his mind or that he did not see the required documents before issuing the distress warrant. </p><p>4. The learned counsel then pointed out that the warrant issued was vague inasmuch as it did not specify the particular lorry which was to be attached. That was not the requirement of law. Under section 421, the warrant had to specify for the attachment and sale of any movable property belonging to the assessee. It could not be contemplated that the lorry or any other movable property would at all be available for attachment at the time the order was to be served upon the assessee. Therefore, no exception can be taken to the form of the warrant issued. It was rather the correct warrant and provided for all that was required under law to be provided for. </p><p>5. An ingenious argument was raised by the learned counsel for the petitioners with reference to section 421 of the Code of Criminal Procedure. It was stated that the learned Magistrate could not impose a fine exceeding Rs. 5,000 and, therefore, the issue of distress warrant for recovery of Rs. 67,200 by attachment and sale of property was an act beyond the jurisdiction of the Magistrate. For that, the learned counsel relied on a Division Bench case of this Court in Mohanlal Premchand v. Commercial Tax Officer [[1971] 28 S.T.C. 492; (1971) 1 Mys. L.J. 72]. But, that case related to the unamended section 13(3)(b). The language 'notwithstanding anything contained in the Code of Criminal Procedure, 1898' was not there before 1972. That is why, the Division Bench of this Court came to the conclusion that the Magistrate issuing the warrant of distress could not ask for recovery of an amount exceeding his own power to levy fine. The above-noted language used in sub-section (3)(b) rather makes the position clear. The limit imposed by the legislature on the levy of fine will no longer hold goods and the Magistrate would realise the amount 'as if it were a fine imposed by him' notwithstanding that the amount to be recovered is much more than the fine which could be imposed by him. </p><p>6. In this view of the matter, I do not find any defect in the order made by the learned Magistrate. As such, no revision is sustainable against that order. The petition is, therefore, dismissed. </p><p>7. Petition dismissed. <p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[1977]40STC320(Kar)', 'ratiodecidendi' => '', 'respondent' => 'The Commercial Tax Officer, Mysore Circle, Mysore', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ) $casename_url = 's-dasappa-company-vs-commercial-officer' $args = array( (int) 0 => '371016', (int) 1 => 's-dasappa-company-vs-commercial-officer' ) $url = 'https://sooperkanoon.com/case/amp/371016/s-dasappa-company-vs-commercial-officer' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>Lal, J. ', (int) 1 => '<p>1. This is a criminal revision under section 13(4) of the <a>Karnataka Sales Tax Act, 1957</a> (hereinafter to be referred to as the 'Act'), and it arises in the following circumstances : ', (int) 2 => '<p>M/s. S. Dasappa and Company is said to be a partnership firm having their place of business at Santepet, Kollegal, District Mysore. It is not disputed that they are assessees under the Act and, accordingly, under sections 12 and 12-B of the Act, they were liable to submit returns for assessment. They were also liable to pay the tax in advance. It is again beyond the pale of controversy that M/s. S. Dasappa and Company, the present petitioners, submitted the annual return under section 12 in form 4, but did not pay any tax in advance. The Commercial Tax Officer issued a notice of demand under form 3-A under rule 18(1)(c) made under the Act. Despite that notice of demand, the tax was not paid. Accordingly, it was considered by the department that the tax was an amount due under the Act from such dealer. Under section 13(3)(b), the Commercial Tax Officer filed an application before the Magistrate that the amount be realised as if it were a fine imposed by him. Thereafter, a distress warrant was issued by the Magistrate and a lorry belonging to the petitioners was attached. Against that order passed by learned Magistrate, the present revision is filed under sub-section (4) of section 13 of the Act. ', (int) 3 => '<p>2. The learned counsel for the petitioners contended that before issuing a distress warrant, the Magistrate was required to issue a notice to show cause. These is no requirement for such a prior notice under section 421 of the Code of Criminal Procedure. Similarly, there is no provision for a prior notice to show cause under section 13(4) of the Act. Therefore, the order of the learned Magistrate cannot be struck down merely, because he did not issue a notice to show cause. The petitioners have also submitted a return in form 4 and, on the basis of that return, the sales tax due in a sum of Rs. 67,200 was demanded. The records of the Commercial Tax Officer is brought for a perusal of the court by the learned State Public Prosecutor and from that record it is evident that the said return was filed by the petitioners and under a calculation made on the basis of their return, a sum of Rs. 67,200 was payable as sales tax. In fact, the petitioners have themselves mentioned that amount as payable by them for sales tax. Since under sections 12 and 12-B of the Act, the tax was payable in advance and the same was not paid, the demand notice under form 3-A was issued. In these circumstances, even principles of natural justice never required that a prior notice to show cause should have been given before sending a warrant for attachment and sale of any movable property belonging to the assessee. ', (int) 4 => '<p>3. It is next contended by the learned counsel that there was no assessment order and the learned Magistrate was required to see the assessment order before he could proceed to issue the warrant for attachment and sale of any movable property. For this the learned counsel relied on a decision in Ganesh Narayana Hedge v. Commercial Tax Officer, Sirsi [[1976] 37 S.T.C. 567; (1976) 1 Kar. L.J. 233]. But the facts of that case were different and that ruling would have no effect in the present case. As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. That apart, no material was produced before the Magistrate even stating as to whether the petitioners were the assessees and as to whether any tax could at all be realised from them. The Magistrate did not apply his mind and issued the distress warrant. In these circumstances, it was held that the order of the Magistrate was illegal and could not be sustained. The position in the instant case is entirely different. The file of the Commercial Tax Officer does indicate that the petitioners themselves filed a return and calculated the amount of tax payable by them. The very same tax was demanded from the petitioners under a notice of demand. Firstly, they ought to have paid the tax in advance which they never did. Secondly, the demand notice was issued and again they failed to pay the tax. In view of sections 12 and 12-B of the Act, decidedly that was the amount due under the Act from such a dealer. As such, upon the plain language of section 13(3), the amount due was recoverable as if it were a fine imposed by a Magistrate. Thus, the said ruling relied upon by the learned counsel will not be of any help to the petitioners. An assessment order was not required, as under section 12-B, the tax was an amount due under the Act from such dealer. In fact, that was the amount pointed out by the dealer himself as payable by him. Therefore, the order of the learned Magistrate cannot be questioned on this ground that either he did not apply his mind or that he did not see the required documents before issuing the distress warrant. ', (int) 5 => '<p>4. The learned counsel then pointed out that the warrant issued was vague inasmuch as it did not specify the particular lorry which was to be attached. That was not the requirement of law. Under section 421, the warrant had to specify for the attachment and sale of any movable property belonging to the assessee. It could not be contemplated that the lorry or any other movable property would at all be available for attachment at the time the order was to be served upon the assessee. Therefore, no exception can be taken to the form of the warrant issued. It was rather the correct warrant and provided for all that was required under law to be provided for. ', (int) 6 => '<p>5. An ingenious argument was raised by the learned counsel for the petitioners with reference to section 421 of the Code of Criminal Procedure. It was stated that the learned Magistrate could not impose a fine exceeding Rs. 5,000 and, therefore, the issue of distress warrant for recovery of Rs. 67,200 by attachment and sale of property was an act beyond the jurisdiction of the Magistrate. For that, the learned counsel relied on a Division Bench case of this Court in Mohanlal Premchand v. Commercial Tax Officer [[1971] 28 S.T.C. 492; (1971) 1 Mys. L.J. 72]. But, that case related to the unamended section 13(3)(b). The language 'notwithstanding anything contained in the Code of Criminal Procedure, 1898' was not there before 1972. That is why, the Division Bench of this Court came to the conclusion that the Magistrate issuing the warrant of distress could not ask for recovery of an amount exceeding his own power to levy fine. The above-noted language used in sub-section (3)(b) rather makes the position clear. The limit imposed by the legislature on the levy of fine will no longer hold goods and the Magistrate would realise the amount 'as if it were a fine imposed by him' notwithstanding that the amount to be recovered is much more than the fine which could be imposed by him. ', (int) 7 => '<p>6. In this view of the matter, I do not find any defect in the order made by the learned Magistrate. As such, no revision is sustainable against that order. The petition is, therefore, dismissed. ', (int) 8 => '<p>7. Petition dismissed. <p>', (int) 9 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 10 $i = (int) 6include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
5. An ingenious argument was raised by the learned counsel for the petitioners with reference to section 421 of the Code of Criminal Procedure. It was stated that the learned Magistrate could not impose a fine exceeding Rs. 5,000 and, therefore, the issue of distress warrant for recovery of Rs. 67,200 by attachment and sale of property was an act beyond the jurisdiction of the Magistrate. For that, the learned counsel relied on a Division Bench case of this Court in Mohanlal Premchand v. Commercial Tax Officer [[1971] 28 S.T.C. 492; (1971) 1 Mys. L.J. 72]. But, that case related to the unamended section 13(3)(b). The language 'notwithstanding anything contained in the Code of Criminal Procedure, 1898' was not there before 1972. That is why, the Division Bench of this Court came to the conclusion that the Magistrate issuing the warrant of distress could not ask for recovery of an amount exceeding his own power to levy fine. The above-noted language used in sub-section (3)(b) rather makes the position clear. The limit imposed by the legislature on the levy of fine will no longer hold goods and the Magistrate would realise the amount 'as if it were a fine imposed by him' notwithstanding that the amount to be recovered is much more than the fine which could be imposed by him.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'S Dasappa and Company Vs the Commercial Tax Officer Mysore Circle Mysore - Citation 371016 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '371016', 'acts' => '<a href="/act/62040/karnataka-sales-tax-act-1957-complete-act">Karnataka Sales Tax Act, 1957</a> - Sections 12, 12B, 13(3) and 13(4)', 'appealno' => 'Criminal Revision Petition No. 468 of 1976', 'appellant' => 'S. Dasappa and Company', 'authreffered' => '', 'casename' => 'S. Dasappa and Company Vs. the Commercial Tax Officer, Mysore Circle, Mysore', 'casenote' => ' - COMPANIES ACT, 1956 [C.A. No. 1/1956]. Sections 529 & 529A & State Financial Corporation Act 1951, Section 29: [S.R. Bannurmath & A.N. Venugopala Gowda, JJ] Proceedings under Taking over of assets of the industrial concern in realisation of dues Sale of assets - Applicability of provisions of Section 529 and 529A Held, The Corporation cannot exercise its rights if the assets of the industrial concern, has already vested in the Company Court or if the Official Liquidator had been put in charge of the assets of the industrial concern. If the winding up proceedings are not set in motion, then, there is no legal impediment to the Corporation to take action under Section 29 of the S.F.C. Act, 1951 and permission of Company Court is not required to be obtained. In the absence of commencement of winding up proceedings, the provision of Section 529 and 529A of the Companies Act cannot be made applicable. The action of the Corporation under Section 29 of the S.F.C. Act is lawful. Further, the Corporation took over only the assets and not the management. The money realised by effecting sale under Sub-Section (2) of Section 29, cannot be apportioned or ordered to be paid to the workmen of the industrial concern, when the industrial concern is not under the winding up proceedings, in terms of the provisions under the Companies Act. The Corporation cannot be held liable either jointly or severally to pay the closure compensation or other claims of the workmen. The industry is liable to pay the wages of the lockout period and the closure compensation to the workmen. -- STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. -- STATE FINANCIAL CORPORATIONS ACT, 1951. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. - As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. Secondly, the demand notice was issued and again they failed to pay the tax.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'S.D. Chhatre, Adv.', 'counseldef' => 'T.J. Chouta, High Court Government Pleader', 'court' => 'Karnataka', 'court_type' => 'HC', 'decidedon' => '1977-02-02', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => 'D.B. Lal, J.', 'judgement' => 'ORDER<p style="text-align: justify;">Lal, J. </p><p style="text-align: justify;">1. This is a criminal revision under section 13(4) of the <a href="/act/62040/karnataka-sales-tax-act-1957-complete-act">Karnataka Sales Tax Act, 1957</a> (hereinafter to be referred to as the 'Act'), and it arises in the following circumstances : </p><p style="text-align: justify;">M/s. S. Dasappa and Company is said to be a partnership firm having their place of business at Santepet, Kollegal, District Mysore. It is not disputed that they are assessees under the Act and, accordingly, under sections 12 and 12-B of the Act, they were liable to submit returns for assessment. They were also liable to pay the tax in advance. It is again beyond the pale of controversy that M/s. S. Dasappa and Company, the present petitioners, submitted the annual return under section 12 in form 4, but did not pay any tax in advance. The Commercial Tax Officer issued a notice of demand under form 3-A under rule 18(1)(c) made under the Act. Despite that notice of demand, the tax was not paid. Accordingly, it was considered by the department that the tax was an amount due under the Act from such dealer. Under section 13(3)(b), the Commercial Tax Officer filed an application before the Magistrate that the amount be realised as if it were a fine imposed by him. Thereafter, a distress warrant was issued by the Magistrate and a lorry belonging to the petitioners was attached. Against that order passed by learned Magistrate, the present revision is filed under sub-section (4) of section 13 of the Act. </p><p style="text-align: justify;">2. The learned counsel for the petitioners contended that before issuing a distress warrant, the Magistrate was required to issue a notice to show cause. These is no requirement for such a prior notice under section 421 of the Code of Criminal Procedure. Similarly, there is no provision for a prior notice to show cause under section 13(4) of the Act. Therefore, the order of the learned Magistrate cannot be struck down merely, because he did not issue a notice to show cause. The petitioners have also submitted a return in form 4 and, on the basis of that return, the sales tax due in a sum of Rs. 67,200 was demanded. The records of the Commercial Tax Officer is brought for a perusal of the court by the learned State Public Prosecutor and from that record it is evident that the said return was filed by the petitioners and under a calculation made on the basis of their return, a sum of Rs. 67,200 was payable as sales tax. In fact, the petitioners have themselves mentioned that amount as payable by them for sales tax. Since under sections 12 and 12-B of the Act, the tax was payable in advance and the same was not paid, the demand notice under form 3-A was issued. In these circumstances, even principles of natural justice never required that a prior notice to show cause should have been given before sending a warrant for attachment and sale of any movable property belonging to the assessee. </p><p style="text-align: justify;">3. It is next contended by the learned counsel that there was no assessment order and the learned Magistrate was required to see the assessment order before he could proceed to issue the warrant for attachment and sale of any movable property. For this the learned counsel relied on a decision in Ganesh Narayana Hedge v. Commercial Tax Officer, Sirsi [[1976] 37 S.T.C. 567; (1976) 1 Kar. L.J. 233]. But the facts of that case were different and that ruling would have no effect in the present case. As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. That apart, no material was produced before the Magistrate even stating as to whether the petitioners were the assessees and as to whether any tax could at all be realised from them. The Magistrate did not apply his mind and issued the distress warrant. In these circumstances, it was held that the order of the Magistrate was illegal and could not be sustained. The position in the instant case is entirely different. The file of the Commercial Tax Officer does indicate that the petitioners themselves filed a return and calculated the amount of tax payable by them. The very same tax was demanded from the petitioners under a notice of demand. Firstly, they ought to have paid the tax in advance which they never did. Secondly, the demand notice was issued and again they failed to pay the tax. In view of sections 12 and 12-B of the Act, decidedly that was the amount due under the Act from such a dealer. As such, upon the plain language of section 13(3), the amount due was recoverable as if it were a fine imposed by a Magistrate. Thus, the said ruling relied upon by the learned counsel will not be of any help to the petitioners. An assessment order was not required, as under section 12-B, the tax was an amount due under the Act from such dealer. In fact, that was the amount pointed out by the dealer himself as payable by him. Therefore, the order of the learned Magistrate cannot be questioned on this ground that either he did not apply his mind or that he did not see the required documents before issuing the distress warrant. </p><p style="text-align: justify;">4. The learned counsel then pointed out that the warrant issued was vague inasmuch as it did not specify the particular lorry which was to be attached. That was not the requirement of law. Under section 421, the warrant had to specify for the attachment and sale of any movable property belonging to the assessee. It could not be contemplated that the lorry or any other movable property would at all be available for attachment at the time the order was to be served upon the assessee. Therefore, no exception can be taken to the form of the warrant issued. It was rather the correct warrant and provided for all that was required under law to be provided for. </p><p style="text-align: justify;">5. An ingenious argument was raised by the learned counsel for the petitioners with reference to section 421 of the Code of Criminal Procedure. It was stated that the learned Magistrate could not impose a fine exceeding Rs. 5,000 and, therefore, the issue of distress warrant for recovery of Rs. 67,200 by attachment and sale of property was an act beyond the jurisdiction of the Magistrate. For that, the learned counsel relied on a Division Bench case of this Court in Mohanlal Premchand v. Commercial Tax Officer [[1971] 28 S.T.C. 492; (1971) 1 Mys. L.J. 72]. But, that case related to the unamended section 13(3)(b). The language 'notwithstanding anything contained in the Code of Criminal Procedure, 1898' was not there before 1972. That is why, the Division Bench of this Court came to the conclusion that the Magistrate issuing the warrant of distress could not ask for recovery of an amount exceeding his own power to levy fine. The above-noted language used in sub-section (3)(b) rather makes the position clear. The limit imposed by the legislature on the levy of fine will no longer hold goods and the Magistrate would realise the amount 'as if it were a fine imposed by him' notwithstanding that the amount to be recovered is much more than the fine which could be imposed by him. </p><p style="text-align: justify;">6. In this view of the matter, I do not find any defect in the order made by the learned Magistrate. As such, no revision is sustainable against that order. The petition is, therefore, dismissed. </p><p style="text-align: justify;">7. Petition dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[1977]40STC320(Kar)', 'ratiodecidendi' => '', 'respondent' => 'The Commercial Tax Officer, Mysore Circle, Mysore', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ), 'casename_url' => 's-dasappa-company-vs-commercial-officer', 'args' => array( (int) 0 => '371016', (int) 1 => 's-dasappa-company-vs-commercial-officer' ) ) $title_for_layout = 'S Dasappa and Company Vs the Commercial Tax Officer Mysore Circle Mysore - Citation 371016 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '371016', 'acts' => '<a href="/act/62040/karnataka-sales-tax-act-1957-complete-act">Karnataka Sales Tax Act, 1957</a> - Sections 12, 12B, 13(3) and 13(4)', 'appealno' => 'Criminal Revision Petition No. 468 of 1976', 'appellant' => 'S. Dasappa and Company', 'authreffered' => '', 'casename' => 'S. Dasappa and Company Vs. the Commercial Tax Officer, Mysore Circle, Mysore', 'casenote' => ' - COMPANIES ACT, 1956 [C.A. No. 1/1956]. Sections 529 & 529A & State Financial Corporation Act 1951, Section 29: [S.R. Bannurmath & A.N. Venugopala Gowda, JJ] Proceedings under Taking over of assets of the industrial concern in realisation of dues Sale of assets - Applicability of provisions of Section 529 and 529A Held, The Corporation cannot exercise its rights if the assets of the industrial concern, has already vested in the Company Court or if the Official Liquidator had been put in charge of the assets of the industrial concern. If the winding up proceedings are not set in motion, then, there is no legal impediment to the Corporation to take action under Section 29 of the S.F.C. Act, 1951 and permission of Company Court is not required to be obtained. In the absence of commencement of winding up proceedings, the provision of Section 529 and 529A of the Companies Act cannot be made applicable. The action of the Corporation under Section 29 of the S.F.C. Act is lawful. Further, the Corporation took over only the assets and not the management. The money realised by effecting sale under Sub-Section (2) of Section 29, cannot be apportioned or ordered to be paid to the workmen of the industrial concern, when the industrial concern is not under the winding up proceedings, in terms of the provisions under the Companies Act. The Corporation cannot be held liable either jointly or severally to pay the closure compensation or other claims of the workmen. The industry is liable to pay the wages of the lockout period and the closure compensation to the workmen. -- STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. -- STATE FINANCIAL CORPORATIONS ACT, 1951. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. - As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. Secondly, the demand notice was issued and again they failed to pay the tax.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'S.D. Chhatre, Adv.', 'counseldef' => 'T.J. Chouta, High Court Government Pleader', 'court' => 'Karnataka', 'court_type' => 'HC', 'decidedon' => '1977-02-02', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => 'D.B. Lal, J.', 'judgement' => 'ORDER<p>Lal, J. </p><p>1. This is a criminal revision under section 13(4) of the <a>Karnataka Sales Tax Act, 1957</a> (hereinafter to be referred to as the 'Act'), and it arises in the following circumstances : </p><p>M/s. S. Dasappa and Company is said to be a partnership firm having their place of business at Santepet, Kollegal, District Mysore. It is not disputed that they are assessees under the Act and, accordingly, under sections 12 and 12-B of the Act, they were liable to submit returns for assessment. They were also liable to pay the tax in advance. It is again beyond the pale of controversy that M/s. S. Dasappa and Company, the present petitioners, submitted the annual return under section 12 in form 4, but did not pay any tax in advance. The Commercial Tax Officer issued a notice of demand under form 3-A under rule 18(1)(c) made under the Act. Despite that notice of demand, the tax was not paid. Accordingly, it was considered by the department that the tax was an amount due under the Act from such dealer. Under section 13(3)(b), the Commercial Tax Officer filed an application before the Magistrate that the amount be realised as if it were a fine imposed by him. Thereafter, a distress warrant was issued by the Magistrate and a lorry belonging to the petitioners was attached. Against that order passed by learned Magistrate, the present revision is filed under sub-section (4) of section 13 of the Act. </p><p>2. The learned counsel for the petitioners contended that before issuing a distress warrant, the Magistrate was required to issue a notice to show cause. These is no requirement for such a prior notice under section 421 of the Code of Criminal Procedure. Similarly, there is no provision for a prior notice to show cause under section 13(4) of the Act. Therefore, the order of the learned Magistrate cannot be struck down merely, because he did not issue a notice to show cause. The petitioners have also submitted a return in form 4 and, on the basis of that return, the sales tax due in a sum of Rs. 67,200 was demanded. The records of the Commercial Tax Officer is brought for a perusal of the court by the learned State Public Prosecutor and from that record it is evident that the said return was filed by the petitioners and under a calculation made on the basis of their return, a sum of Rs. 67,200 was payable as sales tax. In fact, the petitioners have themselves mentioned that amount as payable by them for sales tax. Since under sections 12 and 12-B of the Act, the tax was payable in advance and the same was not paid, the demand notice under form 3-A was issued. In these circumstances, even principles of natural justice never required that a prior notice to show cause should have been given before sending a warrant for attachment and sale of any movable property belonging to the assessee. </p><p>3. It is next contended by the learned counsel that there was no assessment order and the learned Magistrate was required to see the assessment order before he could proceed to issue the warrant for attachment and sale of any movable property. For this the learned counsel relied on a decision in Ganesh Narayana Hedge v. Commercial Tax Officer, Sirsi [[1976] 37 S.T.C. 567; (1976) 1 Kar. L.J. 233]. But the facts of that case were different and that ruling would have no effect in the present case. As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. That apart, no material was produced before the Magistrate even stating as to whether the petitioners were the assessees and as to whether any tax could at all be realised from them. The Magistrate did not apply his mind and issued the distress warrant. In these circumstances, it was held that the order of the Magistrate was illegal and could not be sustained. The position in the instant case is entirely different. The file of the Commercial Tax Officer does indicate that the petitioners themselves filed a return and calculated the amount of tax payable by them. The very same tax was demanded from the petitioners under a notice of demand. Firstly, they ought to have paid the tax in advance which they never did. Secondly, the demand notice was issued and again they failed to pay the tax. In view of sections 12 and 12-B of the Act, decidedly that was the amount due under the Act from such a dealer. As such, upon the plain language of section 13(3), the amount due was recoverable as if it were a fine imposed by a Magistrate. Thus, the said ruling relied upon by the learned counsel will not be of any help to the petitioners. An assessment order was not required, as under section 12-B, the tax was an amount due under the Act from such dealer. In fact, that was the amount pointed out by the dealer himself as payable by him. Therefore, the order of the learned Magistrate cannot be questioned on this ground that either he did not apply his mind or that he did not see the required documents before issuing the distress warrant. </p><p>4. The learned counsel then pointed out that the warrant issued was vague inasmuch as it did not specify the particular lorry which was to be attached. That was not the requirement of law. Under section 421, the warrant had to specify for the attachment and sale of any movable property belonging to the assessee. It could not be contemplated that the lorry or any other movable property would at all be available for attachment at the time the order was to be served upon the assessee. Therefore, no exception can be taken to the form of the warrant issued. It was rather the correct warrant and provided for all that was required under law to be provided for. </p><p>5. An ingenious argument was raised by the learned counsel for the petitioners with reference to section 421 of the Code of Criminal Procedure. It was stated that the learned Magistrate could not impose a fine exceeding Rs. 5,000 and, therefore, the issue of distress warrant for recovery of Rs. 67,200 by attachment and sale of property was an act beyond the jurisdiction of the Magistrate. For that, the learned counsel relied on a Division Bench case of this Court in Mohanlal Premchand v. Commercial Tax Officer [[1971] 28 S.T.C. 492; (1971) 1 Mys. L.J. 72]. But, that case related to the unamended section 13(3)(b). The language 'notwithstanding anything contained in the Code of Criminal Procedure, 1898' was not there before 1972. That is why, the Division Bench of this Court came to the conclusion that the Magistrate issuing the warrant of distress could not ask for recovery of an amount exceeding his own power to levy fine. The above-noted language used in sub-section (3)(b) rather makes the position clear. The limit imposed by the legislature on the levy of fine will no longer hold goods and the Magistrate would realise the amount 'as if it were a fine imposed by him' notwithstanding that the amount to be recovered is much more than the fine which could be imposed by him. </p><p>6. In this view of the matter, I do not find any defect in the order made by the learned Magistrate. As such, no revision is sustainable against that order. The petition is, therefore, dismissed. </p><p>7. Petition dismissed. <p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[1977]40STC320(Kar)', 'ratiodecidendi' => '', 'respondent' => 'The Commercial Tax Officer, Mysore Circle, Mysore', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ) $casename_url = 's-dasappa-company-vs-commercial-officer' $args = array( (int) 0 => '371016', (int) 1 => 's-dasappa-company-vs-commercial-officer' ) $url = 'https://sooperkanoon.com/case/amp/371016/s-dasappa-company-vs-commercial-officer' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>Lal, J. ', (int) 1 => '<p>1. This is a criminal revision under section 13(4) of the <a>Karnataka Sales Tax Act, 1957</a> (hereinafter to be referred to as the 'Act'), and it arises in the following circumstances : ', (int) 2 => '<p>M/s. S. Dasappa and Company is said to be a partnership firm having their place of business at Santepet, Kollegal, District Mysore. It is not disputed that they are assessees under the Act and, accordingly, under sections 12 and 12-B of the Act, they were liable to submit returns for assessment. They were also liable to pay the tax in advance. It is again beyond the pale of controversy that M/s. S. Dasappa and Company, the present petitioners, submitted the annual return under section 12 in form 4, but did not pay any tax in advance. The Commercial Tax Officer issued a notice of demand under form 3-A under rule 18(1)(c) made under the Act. Despite that notice of demand, the tax was not paid. Accordingly, it was considered by the department that the tax was an amount due under the Act from such dealer. Under section 13(3)(b), the Commercial Tax Officer filed an application before the Magistrate that the amount be realised as if it were a fine imposed by him. Thereafter, a distress warrant was issued by the Magistrate and a lorry belonging to the petitioners was attached. Against that order passed by learned Magistrate, the present revision is filed under sub-section (4) of section 13 of the Act. ', (int) 3 => '<p>2. The learned counsel for the petitioners contended that before issuing a distress warrant, the Magistrate was required to issue a notice to show cause. These is no requirement for such a prior notice under section 421 of the Code of Criminal Procedure. Similarly, there is no provision for a prior notice to show cause under section 13(4) of the Act. Therefore, the order of the learned Magistrate cannot be struck down merely, because he did not issue a notice to show cause. The petitioners have also submitted a return in form 4 and, on the basis of that return, the sales tax due in a sum of Rs. 67,200 was demanded. The records of the Commercial Tax Officer is brought for a perusal of the court by the learned State Public Prosecutor and from that record it is evident that the said return was filed by the petitioners and under a calculation made on the basis of their return, a sum of Rs. 67,200 was payable as sales tax. In fact, the petitioners have themselves mentioned that amount as payable by them for sales tax. Since under sections 12 and 12-B of the Act, the tax was payable in advance and the same was not paid, the demand notice under form 3-A was issued. In these circumstances, even principles of natural justice never required that a prior notice to show cause should have been given before sending a warrant for attachment and sale of any movable property belonging to the assessee. ', (int) 4 => '<p>3. It is next contended by the learned counsel that there was no assessment order and the learned Magistrate was required to see the assessment order before he could proceed to issue the warrant for attachment and sale of any movable property. For this the learned counsel relied on a decision in Ganesh Narayana Hedge v. Commercial Tax Officer, Sirsi [[1976] 37 S.T.C. 567; (1976) 1 Kar. L.J. 233]. But the facts of that case were different and that ruling would have no effect in the present case. As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. That apart, no material was produced before the Magistrate even stating as to whether the petitioners were the assessees and as to whether any tax could at all be realised from them. The Magistrate did not apply his mind and issued the distress warrant. In these circumstances, it was held that the order of the Magistrate was illegal and could not be sustained. The position in the instant case is entirely different. The file of the Commercial Tax Officer does indicate that the petitioners themselves filed a return and calculated the amount of tax payable by them. The very same tax was demanded from the petitioners under a notice of demand. Firstly, they ought to have paid the tax in advance which they never did. Secondly, the demand notice was issued and again they failed to pay the tax. In view of sections 12 and 12-B of the Act, decidedly that was the amount due under the Act from such a dealer. As such, upon the plain language of section 13(3), the amount due was recoverable as if it were a fine imposed by a Magistrate. Thus, the said ruling relied upon by the learned counsel will not be of any help to the petitioners. An assessment order was not required, as under section 12-B, the tax was an amount due under the Act from such dealer. In fact, that was the amount pointed out by the dealer himself as payable by him. Therefore, the order of the learned Magistrate cannot be questioned on this ground that either he did not apply his mind or that he did not see the required documents before issuing the distress warrant. ', (int) 5 => '<p>4. The learned counsel then pointed out that the warrant issued was vague inasmuch as it did not specify the particular lorry which was to be attached. That was not the requirement of law. Under section 421, the warrant had to specify for the attachment and sale of any movable property belonging to the assessee. It could not be contemplated that the lorry or any other movable property would at all be available for attachment at the time the order was to be served upon the assessee. Therefore, no exception can be taken to the form of the warrant issued. It was rather the correct warrant and provided for all that was required under law to be provided for. ', (int) 6 => '<p>5. An ingenious argument was raised by the learned counsel for the petitioners with reference to section 421 of the Code of Criminal Procedure. It was stated that the learned Magistrate could not impose a fine exceeding Rs. 5,000 and, therefore, the issue of distress warrant for recovery of Rs. 67,200 by attachment and sale of property was an act beyond the jurisdiction of the Magistrate. For that, the learned counsel relied on a Division Bench case of this Court in Mohanlal Premchand v. Commercial Tax Officer [[1971] 28 S.T.C. 492; (1971) 1 Mys. L.J. 72]. But, that case related to the unamended section 13(3)(b). The language 'notwithstanding anything contained in the Code of Criminal Procedure, 1898' was not there before 1972. That is why, the Division Bench of this Court came to the conclusion that the Magistrate issuing the warrant of distress could not ask for recovery of an amount exceeding his own power to levy fine. The above-noted language used in sub-section (3)(b) rather makes the position clear. The limit imposed by the legislature on the levy of fine will no longer hold goods and the Magistrate would realise the amount 'as if it were a fine imposed by him' notwithstanding that the amount to be recovered is much more than the fine which could be imposed by him. ', (int) 7 => '<p>6. In this view of the matter, I do not find any defect in the order made by the learned Magistrate. As such, no revision is sustainable against that order. The petition is, therefore, dismissed. ', (int) 8 => '<p>7. Petition dismissed. <p>', (int) 9 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 10 $i = (int) 7include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
6. In this view of the matter, I do not find any defect in the order made by the learned Magistrate. As such, no revision is sustainable against that order. The petition is, therefore, dismissed.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'S Dasappa and Company Vs the Commercial Tax Officer Mysore Circle Mysore - Citation 371016 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '371016', 'acts' => '<a href="/act/62040/karnataka-sales-tax-act-1957-complete-act">Karnataka Sales Tax Act, 1957</a> - Sections 12, 12B, 13(3) and 13(4)', 'appealno' => 'Criminal Revision Petition No. 468 of 1976', 'appellant' => 'S. Dasappa and Company', 'authreffered' => '', 'casename' => 'S. Dasappa and Company Vs. the Commercial Tax Officer, Mysore Circle, Mysore', 'casenote' => ' - COMPANIES ACT, 1956 [C.A. No. 1/1956]. Sections 529 & 529A & State Financial Corporation Act 1951, Section 29: [S.R. Bannurmath & A.N. Venugopala Gowda, JJ] Proceedings under Taking over of assets of the industrial concern in realisation of dues Sale of assets - Applicability of provisions of Section 529 and 529A Held, The Corporation cannot exercise its rights if the assets of the industrial concern, has already vested in the Company Court or if the Official Liquidator had been put in charge of the assets of the industrial concern. If the winding up proceedings are not set in motion, then, there is no legal impediment to the Corporation to take action under Section 29 of the S.F.C. Act, 1951 and permission of Company Court is not required to be obtained. In the absence of commencement of winding up proceedings, the provision of Section 529 and 529A of the Companies Act cannot be made applicable. The action of the Corporation under Section 29 of the S.F.C. Act is lawful. Further, the Corporation took over only the assets and not the management. The money realised by effecting sale under Sub-Section (2) of Section 29, cannot be apportioned or ordered to be paid to the workmen of the industrial concern, when the industrial concern is not under the winding up proceedings, in terms of the provisions under the Companies Act. The Corporation cannot be held liable either jointly or severally to pay the closure compensation or other claims of the workmen. The industry is liable to pay the wages of the lockout period and the closure compensation to the workmen. -- STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. -- STATE FINANCIAL CORPORATIONS ACT, 1951. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. - As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. Secondly, the demand notice was issued and again they failed to pay the tax.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'S.D. Chhatre, Adv.', 'counseldef' => 'T.J. Chouta, High Court Government Pleader', 'court' => 'Karnataka', 'court_type' => 'HC', 'decidedon' => '1977-02-02', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => 'D.B. Lal, J.', 'judgement' => 'ORDER<p style="text-align: justify;">Lal, J. </p><p style="text-align: justify;">1. This is a criminal revision under section 13(4) of the <a href="/act/62040/karnataka-sales-tax-act-1957-complete-act">Karnataka Sales Tax Act, 1957</a> (hereinafter to be referred to as the 'Act'), and it arises in the following circumstances : </p><p style="text-align: justify;">M/s. S. Dasappa and Company is said to be a partnership firm having their place of business at Santepet, Kollegal, District Mysore. It is not disputed that they are assessees under the Act and, accordingly, under sections 12 and 12-B of the Act, they were liable to submit returns for assessment. They were also liable to pay the tax in advance. It is again beyond the pale of controversy that M/s. S. Dasappa and Company, the present petitioners, submitted the annual return under section 12 in form 4, but did not pay any tax in advance. The Commercial Tax Officer issued a notice of demand under form 3-A under rule 18(1)(c) made under the Act. Despite that notice of demand, the tax was not paid. Accordingly, it was considered by the department that the tax was an amount due under the Act from such dealer. Under section 13(3)(b), the Commercial Tax Officer filed an application before the Magistrate that the amount be realised as if it were a fine imposed by him. Thereafter, a distress warrant was issued by the Magistrate and a lorry belonging to the petitioners was attached. Against that order passed by learned Magistrate, the present revision is filed under sub-section (4) of section 13 of the Act. </p><p style="text-align: justify;">2. The learned counsel for the petitioners contended that before issuing a distress warrant, the Magistrate was required to issue a notice to show cause. These is no requirement for such a prior notice under section 421 of the Code of Criminal Procedure. Similarly, there is no provision for a prior notice to show cause under section 13(4) of the Act. Therefore, the order of the learned Magistrate cannot be struck down merely, because he did not issue a notice to show cause. The petitioners have also submitted a return in form 4 and, on the basis of that return, the sales tax due in a sum of Rs. 67,200 was demanded. The records of the Commercial Tax Officer is brought for a perusal of the court by the learned State Public Prosecutor and from that record it is evident that the said return was filed by the petitioners and under a calculation made on the basis of their return, a sum of Rs. 67,200 was payable as sales tax. In fact, the petitioners have themselves mentioned that amount as payable by them for sales tax. Since under sections 12 and 12-B of the Act, the tax was payable in advance and the same was not paid, the demand notice under form 3-A was issued. In these circumstances, even principles of natural justice never required that a prior notice to show cause should have been given before sending a warrant for attachment and sale of any movable property belonging to the assessee. </p><p style="text-align: justify;">3. It is next contended by the learned counsel that there was no assessment order and the learned Magistrate was required to see the assessment order before he could proceed to issue the warrant for attachment and sale of any movable property. For this the learned counsel relied on a decision in Ganesh Narayana Hedge v. Commercial Tax Officer, Sirsi [[1976] 37 S.T.C. 567; (1976) 1 Kar. L.J. 233]. But the facts of that case were different and that ruling would have no effect in the present case. As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. That apart, no material was produced before the Magistrate even stating as to whether the petitioners were the assessees and as to whether any tax could at all be realised from them. The Magistrate did not apply his mind and issued the distress warrant. In these circumstances, it was held that the order of the Magistrate was illegal and could not be sustained. The position in the instant case is entirely different. The file of the Commercial Tax Officer does indicate that the petitioners themselves filed a return and calculated the amount of tax payable by them. The very same tax was demanded from the petitioners under a notice of demand. Firstly, they ought to have paid the tax in advance which they never did. Secondly, the demand notice was issued and again they failed to pay the tax. In view of sections 12 and 12-B of the Act, decidedly that was the amount due under the Act from such a dealer. As such, upon the plain language of section 13(3), the amount due was recoverable as if it were a fine imposed by a Magistrate. Thus, the said ruling relied upon by the learned counsel will not be of any help to the petitioners. An assessment order was not required, as under section 12-B, the tax was an amount due under the Act from such dealer. In fact, that was the amount pointed out by the dealer himself as payable by him. Therefore, the order of the learned Magistrate cannot be questioned on this ground that either he did not apply his mind or that he did not see the required documents before issuing the distress warrant. </p><p style="text-align: justify;">4. The learned counsel then pointed out that the warrant issued was vague inasmuch as it did not specify the particular lorry which was to be attached. That was not the requirement of law. Under section 421, the warrant had to specify for the attachment and sale of any movable property belonging to the assessee. It could not be contemplated that the lorry or any other movable property would at all be available for attachment at the time the order was to be served upon the assessee. Therefore, no exception can be taken to the form of the warrant issued. It was rather the correct warrant and provided for all that was required under law to be provided for. </p><p style="text-align: justify;">5. An ingenious argument was raised by the learned counsel for the petitioners with reference to section 421 of the Code of Criminal Procedure. It was stated that the learned Magistrate could not impose a fine exceeding Rs. 5,000 and, therefore, the issue of distress warrant for recovery of Rs. 67,200 by attachment and sale of property was an act beyond the jurisdiction of the Magistrate. For that, the learned counsel relied on a Division Bench case of this Court in Mohanlal Premchand v. Commercial Tax Officer [[1971] 28 S.T.C. 492; (1971) 1 Mys. L.J. 72]. But, that case related to the unamended section 13(3)(b). The language 'notwithstanding anything contained in the Code of Criminal Procedure, 1898' was not there before 1972. That is why, the Division Bench of this Court came to the conclusion that the Magistrate issuing the warrant of distress could not ask for recovery of an amount exceeding his own power to levy fine. The above-noted language used in sub-section (3)(b) rather makes the position clear. The limit imposed by the legislature on the levy of fine will no longer hold goods and the Magistrate would realise the amount 'as if it were a fine imposed by him' notwithstanding that the amount to be recovered is much more than the fine which could be imposed by him. </p><p style="text-align: justify;">6. In this view of the matter, I do not find any defect in the order made by the learned Magistrate. As such, no revision is sustainable against that order. The petition is, therefore, dismissed. </p><p style="text-align: justify;">7. Petition dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[1977]40STC320(Kar)', 'ratiodecidendi' => '', 'respondent' => 'The Commercial Tax Officer, Mysore Circle, Mysore', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ), 'casename_url' => 's-dasappa-company-vs-commercial-officer', 'args' => array( (int) 0 => '371016', (int) 1 => 's-dasappa-company-vs-commercial-officer' ) ) $title_for_layout = 'S Dasappa and Company Vs the Commercial Tax Officer Mysore Circle Mysore - Citation 371016 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '371016', 'acts' => '<a href="/act/62040/karnataka-sales-tax-act-1957-complete-act">Karnataka Sales Tax Act, 1957</a> - Sections 12, 12B, 13(3) and 13(4)', 'appealno' => 'Criminal Revision Petition No. 468 of 1976', 'appellant' => 'S. Dasappa and Company', 'authreffered' => '', 'casename' => 'S. Dasappa and Company Vs. the Commercial Tax Officer, Mysore Circle, Mysore', 'casenote' => ' - COMPANIES ACT, 1956 [C.A. No. 1/1956]. Sections 529 & 529A & State Financial Corporation Act 1951, Section 29: [S.R. Bannurmath & A.N. Venugopala Gowda, JJ] Proceedings under Taking over of assets of the industrial concern in realisation of dues Sale of assets - Applicability of provisions of Section 529 and 529A Held, The Corporation cannot exercise its rights if the assets of the industrial concern, has already vested in the Company Court or if the Official Liquidator had been put in charge of the assets of the industrial concern. If the winding up proceedings are not set in motion, then, there is no legal impediment to the Corporation to take action under Section 29 of the S.F.C. Act, 1951 and permission of Company Court is not required to be obtained. In the absence of commencement of winding up proceedings, the provision of Section 529 and 529A of the Companies Act cannot be made applicable. The action of the Corporation under Section 29 of the S.F.C. Act is lawful. Further, the Corporation took over only the assets and not the management. The money realised by effecting sale under Sub-Section (2) of Section 29, cannot be apportioned or ordered to be paid to the workmen of the industrial concern, when the industrial concern is not under the winding up proceedings, in terms of the provisions under the Companies Act. The Corporation cannot be held liable either jointly or severally to pay the closure compensation or other claims of the workmen. The industry is liable to pay the wages of the lockout period and the closure compensation to the workmen. -- STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. -- STATE FINANCIAL CORPORATIONS ACT, 1951. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. - As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. Secondly, the demand notice was issued and again they failed to pay the tax.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'S.D. Chhatre, Adv.', 'counseldef' => 'T.J. Chouta, High Court Government Pleader', 'court' => 'Karnataka', 'court_type' => 'HC', 'decidedon' => '1977-02-02', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => 'D.B. Lal, J.', 'judgement' => 'ORDER<p>Lal, J. </p><p>1. This is a criminal revision under section 13(4) of the <a>Karnataka Sales Tax Act, 1957</a> (hereinafter to be referred to as the 'Act'), and it arises in the following circumstances : </p><p>M/s. S. Dasappa and Company is said to be a partnership firm having their place of business at Santepet, Kollegal, District Mysore. It is not disputed that they are assessees under the Act and, accordingly, under sections 12 and 12-B of the Act, they were liable to submit returns for assessment. They were also liable to pay the tax in advance. It is again beyond the pale of controversy that M/s. S. Dasappa and Company, the present petitioners, submitted the annual return under section 12 in form 4, but did not pay any tax in advance. The Commercial Tax Officer issued a notice of demand under form 3-A under rule 18(1)(c) made under the Act. Despite that notice of demand, the tax was not paid. Accordingly, it was considered by the department that the tax was an amount due under the Act from such dealer. Under section 13(3)(b), the Commercial Tax Officer filed an application before the Magistrate that the amount be realised as if it were a fine imposed by him. Thereafter, a distress warrant was issued by the Magistrate and a lorry belonging to the petitioners was attached. Against that order passed by learned Magistrate, the present revision is filed under sub-section (4) of section 13 of the Act. </p><p>2. The learned counsel for the petitioners contended that before issuing a distress warrant, the Magistrate was required to issue a notice to show cause. These is no requirement for such a prior notice under section 421 of the Code of Criminal Procedure. Similarly, there is no provision for a prior notice to show cause under section 13(4) of the Act. Therefore, the order of the learned Magistrate cannot be struck down merely, because he did not issue a notice to show cause. The petitioners have also submitted a return in form 4 and, on the basis of that return, the sales tax due in a sum of Rs. 67,200 was demanded. The records of the Commercial Tax Officer is brought for a perusal of the court by the learned State Public Prosecutor and from that record it is evident that the said return was filed by the petitioners and under a calculation made on the basis of their return, a sum of Rs. 67,200 was payable as sales tax. In fact, the petitioners have themselves mentioned that amount as payable by them for sales tax. Since under sections 12 and 12-B of the Act, the tax was payable in advance and the same was not paid, the demand notice under form 3-A was issued. In these circumstances, even principles of natural justice never required that a prior notice to show cause should have been given before sending a warrant for attachment and sale of any movable property belonging to the assessee. </p><p>3. It is next contended by the learned counsel that there was no assessment order and the learned Magistrate was required to see the assessment order before he could proceed to issue the warrant for attachment and sale of any movable property. For this the learned counsel relied on a decision in Ganesh Narayana Hedge v. Commercial Tax Officer, Sirsi [[1976] 37 S.T.C. 567; (1976) 1 Kar. L.J. 233]. But the facts of that case were different and that ruling would have no effect in the present case. As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. That apart, no material was produced before the Magistrate even stating as to whether the petitioners were the assessees and as to whether any tax could at all be realised from them. The Magistrate did not apply his mind and issued the distress warrant. In these circumstances, it was held that the order of the Magistrate was illegal and could not be sustained. The position in the instant case is entirely different. The file of the Commercial Tax Officer does indicate that the petitioners themselves filed a return and calculated the amount of tax payable by them. The very same tax was demanded from the petitioners under a notice of demand. Firstly, they ought to have paid the tax in advance which they never did. Secondly, the demand notice was issued and again they failed to pay the tax. In view of sections 12 and 12-B of the Act, decidedly that was the amount due under the Act from such a dealer. As such, upon the plain language of section 13(3), the amount due was recoverable as if it were a fine imposed by a Magistrate. Thus, the said ruling relied upon by the learned counsel will not be of any help to the petitioners. An assessment order was not required, as under section 12-B, the tax was an amount due under the Act from such dealer. In fact, that was the amount pointed out by the dealer himself as payable by him. Therefore, the order of the learned Magistrate cannot be questioned on this ground that either he did not apply his mind or that he did not see the required documents before issuing the distress warrant. </p><p>4. The learned counsel then pointed out that the warrant issued was vague inasmuch as it did not specify the particular lorry which was to be attached. That was not the requirement of law. Under section 421, the warrant had to specify for the attachment and sale of any movable property belonging to the assessee. It could not be contemplated that the lorry or any other movable property would at all be available for attachment at the time the order was to be served upon the assessee. Therefore, no exception can be taken to the form of the warrant issued. It was rather the correct warrant and provided for all that was required under law to be provided for. </p><p>5. An ingenious argument was raised by the learned counsel for the petitioners with reference to section 421 of the Code of Criminal Procedure. It was stated that the learned Magistrate could not impose a fine exceeding Rs. 5,000 and, therefore, the issue of distress warrant for recovery of Rs. 67,200 by attachment and sale of property was an act beyond the jurisdiction of the Magistrate. For that, the learned counsel relied on a Division Bench case of this Court in Mohanlal Premchand v. Commercial Tax Officer [[1971] 28 S.T.C. 492; (1971) 1 Mys. L.J. 72]. But, that case related to the unamended section 13(3)(b). The language 'notwithstanding anything contained in the Code of Criminal Procedure, 1898' was not there before 1972. That is why, the Division Bench of this Court came to the conclusion that the Magistrate issuing the warrant of distress could not ask for recovery of an amount exceeding his own power to levy fine. The above-noted language used in sub-section (3)(b) rather makes the position clear. The limit imposed by the legislature on the levy of fine will no longer hold goods and the Magistrate would realise the amount 'as if it were a fine imposed by him' notwithstanding that the amount to be recovered is much more than the fine which could be imposed by him. </p><p>6. In this view of the matter, I do not find any defect in the order made by the learned Magistrate. As such, no revision is sustainable against that order. The petition is, therefore, dismissed. </p><p>7. Petition dismissed. <p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[1977]40STC320(Kar)', 'ratiodecidendi' => '', 'respondent' => 'The Commercial Tax Officer, Mysore Circle, Mysore', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ) $casename_url = 's-dasappa-company-vs-commercial-officer' $args = array( (int) 0 => '371016', (int) 1 => 's-dasappa-company-vs-commercial-officer' ) $url = 'https://sooperkanoon.com/case/amp/371016/s-dasappa-company-vs-commercial-officer' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>Lal, J. ', (int) 1 => '<p>1. This is a criminal revision under section 13(4) of the <a>Karnataka Sales Tax Act, 1957</a> (hereinafter to be referred to as the 'Act'), and it arises in the following circumstances : ', (int) 2 => '<p>M/s. S. Dasappa and Company is said to be a partnership firm having their place of business at Santepet, Kollegal, District Mysore. It is not disputed that they are assessees under the Act and, accordingly, under sections 12 and 12-B of the Act, they were liable to submit returns for assessment. They were also liable to pay the tax in advance. It is again beyond the pale of controversy that M/s. S. Dasappa and Company, the present petitioners, submitted the annual return under section 12 in form 4, but did not pay any tax in advance. The Commercial Tax Officer issued a notice of demand under form 3-A under rule 18(1)(c) made under the Act. Despite that notice of demand, the tax was not paid. Accordingly, it was considered by the department that the tax was an amount due under the Act from such dealer. Under section 13(3)(b), the Commercial Tax Officer filed an application before the Magistrate that the amount be realised as if it were a fine imposed by him. Thereafter, a distress warrant was issued by the Magistrate and a lorry belonging to the petitioners was attached. Against that order passed by learned Magistrate, the present revision is filed under sub-section (4) of section 13 of the Act. ', (int) 3 => '<p>2. The learned counsel for the petitioners contended that before issuing a distress warrant, the Magistrate was required to issue a notice to show cause. These is no requirement for such a prior notice under section 421 of the Code of Criminal Procedure. Similarly, there is no provision for a prior notice to show cause under section 13(4) of the Act. Therefore, the order of the learned Magistrate cannot be struck down merely, because he did not issue a notice to show cause. The petitioners have also submitted a return in form 4 and, on the basis of that return, the sales tax due in a sum of Rs. 67,200 was demanded. The records of the Commercial Tax Officer is brought for a perusal of the court by the learned State Public Prosecutor and from that record it is evident that the said return was filed by the petitioners and under a calculation made on the basis of their return, a sum of Rs. 67,200 was payable as sales tax. In fact, the petitioners have themselves mentioned that amount as payable by them for sales tax. Since under sections 12 and 12-B of the Act, the tax was payable in advance and the same was not paid, the demand notice under form 3-A was issued. In these circumstances, even principles of natural justice never required that a prior notice to show cause should have been given before sending a warrant for attachment and sale of any movable property belonging to the assessee. ', (int) 4 => '<p>3. It is next contended by the learned counsel that there was no assessment order and the learned Magistrate was required to see the assessment order before he could proceed to issue the warrant for attachment and sale of any movable property. For this the learned counsel relied on a decision in Ganesh Narayana Hedge v. Commercial Tax Officer, Sirsi [[1976] 37 S.T.C. 567; (1976) 1 Kar. L.J. 233]. But the facts of that case were different and that ruling would have no effect in the present case. As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. That apart, no material was produced before the Magistrate even stating as to whether the petitioners were the assessees and as to whether any tax could at all be realised from them. The Magistrate did not apply his mind and issued the distress warrant. In these circumstances, it was held that the order of the Magistrate was illegal and could not be sustained. The position in the instant case is entirely different. The file of the Commercial Tax Officer does indicate that the petitioners themselves filed a return and calculated the amount of tax payable by them. The very same tax was demanded from the petitioners under a notice of demand. Firstly, they ought to have paid the tax in advance which they never did. Secondly, the demand notice was issued and again they failed to pay the tax. In view of sections 12 and 12-B of the Act, decidedly that was the amount due under the Act from such a dealer. As such, upon the plain language of section 13(3), the amount due was recoverable as if it were a fine imposed by a Magistrate. Thus, the said ruling relied upon by the learned counsel will not be of any help to the petitioners. An assessment order was not required, as under section 12-B, the tax was an amount due under the Act from such dealer. In fact, that was the amount pointed out by the dealer himself as payable by him. Therefore, the order of the learned Magistrate cannot be questioned on this ground that either he did not apply his mind or that he did not see the required documents before issuing the distress warrant. ', (int) 5 => '<p>4. The learned counsel then pointed out that the warrant issued was vague inasmuch as it did not specify the particular lorry which was to be attached. That was not the requirement of law. Under section 421, the warrant had to specify for the attachment and sale of any movable property belonging to the assessee. It could not be contemplated that the lorry or any other movable property would at all be available for attachment at the time the order was to be served upon the assessee. Therefore, no exception can be taken to the form of the warrant issued. It was rather the correct warrant and provided for all that was required under law to be provided for. ', (int) 6 => '<p>5. An ingenious argument was raised by the learned counsel for the petitioners with reference to section 421 of the Code of Criminal Procedure. It was stated that the learned Magistrate could not impose a fine exceeding Rs. 5,000 and, therefore, the issue of distress warrant for recovery of Rs. 67,200 by attachment and sale of property was an act beyond the jurisdiction of the Magistrate. For that, the learned counsel relied on a Division Bench case of this Court in Mohanlal Premchand v. Commercial Tax Officer [[1971] 28 S.T.C. 492; (1971) 1 Mys. L.J. 72]. But, that case related to the unamended section 13(3)(b). The language 'notwithstanding anything contained in the Code of Criminal Procedure, 1898' was not there before 1972. That is why, the Division Bench of this Court came to the conclusion that the Magistrate issuing the warrant of distress could not ask for recovery of an amount exceeding his own power to levy fine. The above-noted language used in sub-section (3)(b) rather makes the position clear. The limit imposed by the legislature on the levy of fine will no longer hold goods and the Magistrate would realise the amount 'as if it were a fine imposed by him' notwithstanding that the amount to be recovered is much more than the fine which could be imposed by him. ', (int) 7 => '<p>6. In this view of the matter, I do not find any defect in the order made by the learned Magistrate. As such, no revision is sustainable against that order. The petition is, therefore, dismissed. ', (int) 8 => '<p>7. Petition dismissed. <p>', (int) 9 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 10 $i = (int) 8include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
7. Petition dismissed.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'S Dasappa and Company Vs the Commercial Tax Officer Mysore Circle Mysore - Citation 371016 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '371016', 'acts' => '<a href="/act/62040/karnataka-sales-tax-act-1957-complete-act">Karnataka Sales Tax Act, 1957</a> - Sections 12, 12B, 13(3) and 13(4)', 'appealno' => 'Criminal Revision Petition No. 468 of 1976', 'appellant' => 'S. Dasappa and Company', 'authreffered' => '', 'casename' => 'S. Dasappa and Company Vs. the Commercial Tax Officer, Mysore Circle, Mysore', 'casenote' => ' - COMPANIES ACT, 1956 [C.A. No. 1/1956]. Sections 529 & 529A & State Financial Corporation Act 1951, Section 29: [S.R. Bannurmath & A.N. Venugopala Gowda, JJ] Proceedings under Taking over of assets of the industrial concern in realisation of dues Sale of assets - Applicability of provisions of Section 529 and 529A Held, The Corporation cannot exercise its rights if the assets of the industrial concern, has already vested in the Company Court or if the Official Liquidator had been put in charge of the assets of the industrial concern. If the winding up proceedings are not set in motion, then, there is no legal impediment to the Corporation to take action under Section 29 of the S.F.C. Act, 1951 and permission of Company Court is not required to be obtained. In the absence of commencement of winding up proceedings, the provision of Section 529 and 529A of the Companies Act cannot be made applicable. The action of the Corporation under Section 29 of the S.F.C. Act is lawful. Further, the Corporation took over only the assets and not the management. The money realised by effecting sale under Sub-Section (2) of Section 29, cannot be apportioned or ordered to be paid to the workmen of the industrial concern, when the industrial concern is not under the winding up proceedings, in terms of the provisions under the Companies Act. The Corporation cannot be held liable either jointly or severally to pay the closure compensation or other claims of the workmen. The industry is liable to pay the wages of the lockout period and the closure compensation to the workmen. -- STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. -- STATE FINANCIAL CORPORATIONS ACT, 1951. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. - As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. Secondly, the demand notice was issued and again they failed to pay the tax.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'S.D. Chhatre, Adv.', 'counseldef' => 'T.J. Chouta, High Court Government Pleader', 'court' => 'Karnataka', 'court_type' => 'HC', 'decidedon' => '1977-02-02', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => 'D.B. Lal, J.', 'judgement' => 'ORDER<p style="text-align: justify;">Lal, J. </p><p style="text-align: justify;">1. This is a criminal revision under section 13(4) of the <a href="/act/62040/karnataka-sales-tax-act-1957-complete-act">Karnataka Sales Tax Act, 1957</a> (hereinafter to be referred to as the 'Act'), and it arises in the following circumstances : </p><p style="text-align: justify;">M/s. S. Dasappa and Company is said to be a partnership firm having their place of business at Santepet, Kollegal, District Mysore. It is not disputed that they are assessees under the Act and, accordingly, under sections 12 and 12-B of the Act, they were liable to submit returns for assessment. They were also liable to pay the tax in advance. It is again beyond the pale of controversy that M/s. S. Dasappa and Company, the present petitioners, submitted the annual return under section 12 in form 4, but did not pay any tax in advance. The Commercial Tax Officer issued a notice of demand under form 3-A under rule 18(1)(c) made under the Act. Despite that notice of demand, the tax was not paid. Accordingly, it was considered by the department that the tax was an amount due under the Act from such dealer. Under section 13(3)(b), the Commercial Tax Officer filed an application before the Magistrate that the amount be realised as if it were a fine imposed by him. Thereafter, a distress warrant was issued by the Magistrate and a lorry belonging to the petitioners was attached. Against that order passed by learned Magistrate, the present revision is filed under sub-section (4) of section 13 of the Act. </p><p style="text-align: justify;">2. The learned counsel for the petitioners contended that before issuing a distress warrant, the Magistrate was required to issue a notice to show cause. These is no requirement for such a prior notice under section 421 of the Code of Criminal Procedure. Similarly, there is no provision for a prior notice to show cause under section 13(4) of the Act. Therefore, the order of the learned Magistrate cannot be struck down merely, because he did not issue a notice to show cause. The petitioners have also submitted a return in form 4 and, on the basis of that return, the sales tax due in a sum of Rs. 67,200 was demanded. The records of the Commercial Tax Officer is brought for a perusal of the court by the learned State Public Prosecutor and from that record it is evident that the said return was filed by the petitioners and under a calculation made on the basis of their return, a sum of Rs. 67,200 was payable as sales tax. In fact, the petitioners have themselves mentioned that amount as payable by them for sales tax. Since under sections 12 and 12-B of the Act, the tax was payable in advance and the same was not paid, the demand notice under form 3-A was issued. In these circumstances, even principles of natural justice never required that a prior notice to show cause should have been given before sending a warrant for attachment and sale of any movable property belonging to the assessee. </p><p style="text-align: justify;">3. It is next contended by the learned counsel that there was no assessment order and the learned Magistrate was required to see the assessment order before he could proceed to issue the warrant for attachment and sale of any movable property. For this the learned counsel relied on a decision in Ganesh Narayana Hedge v. Commercial Tax Officer, Sirsi [[1976] 37 S.T.C. 567; (1976) 1 Kar. L.J. 233]. But the facts of that case were different and that ruling would have no effect in the present case. As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. That apart, no material was produced before the Magistrate even stating as to whether the petitioners were the assessees and as to whether any tax could at all be realised from them. The Magistrate did not apply his mind and issued the distress warrant. In these circumstances, it was held that the order of the Magistrate was illegal and could not be sustained. The position in the instant case is entirely different. The file of the Commercial Tax Officer does indicate that the petitioners themselves filed a return and calculated the amount of tax payable by them. The very same tax was demanded from the petitioners under a notice of demand. Firstly, they ought to have paid the tax in advance which they never did. Secondly, the demand notice was issued and again they failed to pay the tax. In view of sections 12 and 12-B of the Act, decidedly that was the amount due under the Act from such a dealer. As such, upon the plain language of section 13(3), the amount due was recoverable as if it were a fine imposed by a Magistrate. Thus, the said ruling relied upon by the learned counsel will not be of any help to the petitioners. An assessment order was not required, as under section 12-B, the tax was an amount due under the Act from such dealer. In fact, that was the amount pointed out by the dealer himself as payable by him. Therefore, the order of the learned Magistrate cannot be questioned on this ground that either he did not apply his mind or that he did not see the required documents before issuing the distress warrant. </p><p style="text-align: justify;">4. The learned counsel then pointed out that the warrant issued was vague inasmuch as it did not specify the particular lorry which was to be attached. That was not the requirement of law. Under section 421, the warrant had to specify for the attachment and sale of any movable property belonging to the assessee. It could not be contemplated that the lorry or any other movable property would at all be available for attachment at the time the order was to be served upon the assessee. Therefore, no exception can be taken to the form of the warrant issued. It was rather the correct warrant and provided for all that was required under law to be provided for. </p><p style="text-align: justify;">5. An ingenious argument was raised by the learned counsel for the petitioners with reference to section 421 of the Code of Criminal Procedure. It was stated that the learned Magistrate could not impose a fine exceeding Rs. 5,000 and, therefore, the issue of distress warrant for recovery of Rs. 67,200 by attachment and sale of property was an act beyond the jurisdiction of the Magistrate. For that, the learned counsel relied on a Division Bench case of this Court in Mohanlal Premchand v. Commercial Tax Officer [[1971] 28 S.T.C. 492; (1971) 1 Mys. L.J. 72]. But, that case related to the unamended section 13(3)(b). The language 'notwithstanding anything contained in the Code of Criminal Procedure, 1898' was not there before 1972. That is why, the Division Bench of this Court came to the conclusion that the Magistrate issuing the warrant of distress could not ask for recovery of an amount exceeding his own power to levy fine. The above-noted language used in sub-section (3)(b) rather makes the position clear. The limit imposed by the legislature on the levy of fine will no longer hold goods and the Magistrate would realise the amount 'as if it were a fine imposed by him' notwithstanding that the amount to be recovered is much more than the fine which could be imposed by him. </p><p style="text-align: justify;">6. In this view of the matter, I do not find any defect in the order made by the learned Magistrate. As such, no revision is sustainable against that order. The petition is, therefore, dismissed. </p><p style="text-align: justify;">7. Petition dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[1977]40STC320(Kar)', 'ratiodecidendi' => '', 'respondent' => 'The Commercial Tax Officer, Mysore Circle, Mysore', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ), 'casename_url' => 's-dasappa-company-vs-commercial-officer', 'args' => array( (int) 0 => '371016', (int) 1 => 's-dasappa-company-vs-commercial-officer' ) ) $title_for_layout = 'S Dasappa and Company Vs the Commercial Tax Officer Mysore Circle Mysore - Citation 371016 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '371016', 'acts' => '<a href="/act/62040/karnataka-sales-tax-act-1957-complete-act">Karnataka Sales Tax Act, 1957</a> - Sections 12, 12B, 13(3) and 13(4)', 'appealno' => 'Criminal Revision Petition No. 468 of 1976', 'appellant' => 'S. Dasappa and Company', 'authreffered' => '', 'casename' => 'S. Dasappa and Company Vs. the Commercial Tax Officer, Mysore Circle, Mysore', 'casenote' => ' - COMPANIES ACT, 1956 [C.A. No. 1/1956]. Sections 529 & 529A & State Financial Corporation Act 1951, Section 29: [S.R. Bannurmath & A.N. Venugopala Gowda, JJ] Proceedings under Taking over of assets of the industrial concern in realisation of dues Sale of assets - Applicability of provisions of Section 529 and 529A Held, The Corporation cannot exercise its rights if the assets of the industrial concern, has already vested in the Company Court or if the Official Liquidator had been put in charge of the assets of the industrial concern. If the winding up proceedings are not set in motion, then, there is no legal impediment to the Corporation to take action under Section 29 of the S.F.C. Act, 1951 and permission of Company Court is not required to be obtained. In the absence of commencement of winding up proceedings, the provision of Section 529 and 529A of the Companies Act cannot be made applicable. The action of the Corporation under Section 29 of the S.F.C. Act is lawful. Further, the Corporation took over only the assets and not the management. The money realised by effecting sale under Sub-Section (2) of Section 29, cannot be apportioned or ordered to be paid to the workmen of the industrial concern, when the industrial concern is not under the winding up proceedings, in terms of the provisions under the Companies Act. The Corporation cannot be held liable either jointly or severally to pay the closure compensation or other claims of the workmen. The industry is liable to pay the wages of the lockout period and the closure compensation to the workmen. -- STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. -- STATE FINANCIAL CORPORATIONS ACT, 1951. Section 29; Power of the Corporation under Taking over the assets of the industrial concern to realise the dues -Justification of the action of the Corporation Held, The Corporation is empowered to effect recovery of its dues, by resorting to the measures, both under Section 29 and 31 of the Act. Since the industry which was under a liability to the corporation in terms of the agreements executed by it, defaulted in repayment of the loan and failed to comply with the terms of the loan agreements executed by it, the Corporation took over the assets of the industry, with the right to transfer by way of sale and realise the dues, from sale of the assets. Further, The Corporation took over possession of the assets of the industry and admittedly did not take over the management, to run the industry by itself. Had it taken over the management, then it should have run the industry, in which event the provisions contained under Sections 32A to 32G of the Act would have come into operation. - As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. Secondly, the demand notice was issued and again they failed to pay the tax.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'S.D. Chhatre, Adv.', 'counseldef' => 'T.J. Chouta, High Court Government Pleader', 'court' => 'Karnataka', 'court_type' => 'HC', 'decidedon' => '1977-02-02', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => 'D.B. Lal, J.', 'judgement' => 'ORDER<p>Lal, J. </p><p>1. This is a criminal revision under section 13(4) of the <a>Karnataka Sales Tax Act, 1957</a> (hereinafter to be referred to as the 'Act'), and it arises in the following circumstances : </p><p>M/s. S. Dasappa and Company is said to be a partnership firm having their place of business at Santepet, Kollegal, District Mysore. It is not disputed that they are assessees under the Act and, accordingly, under sections 12 and 12-B of the Act, they were liable to submit returns for assessment. They were also liable to pay the tax in advance. It is again beyond the pale of controversy that M/s. S. Dasappa and Company, the present petitioners, submitted the annual return under section 12 in form 4, but did not pay any tax in advance. The Commercial Tax Officer issued a notice of demand under form 3-A under rule 18(1)(c) made under the Act. Despite that notice of demand, the tax was not paid. Accordingly, it was considered by the department that the tax was an amount due under the Act from such dealer. Under section 13(3)(b), the Commercial Tax Officer filed an application before the Magistrate that the amount be realised as if it were a fine imposed by him. Thereafter, a distress warrant was issued by the Magistrate and a lorry belonging to the petitioners was attached. Against that order passed by learned Magistrate, the present revision is filed under sub-section (4) of section 13 of the Act. </p><p>2. The learned counsel for the petitioners contended that before issuing a distress warrant, the Magistrate was required to issue a notice to show cause. These is no requirement for such a prior notice under section 421 of the Code of Criminal Procedure. Similarly, there is no provision for a prior notice to show cause under section 13(4) of the Act. Therefore, the order of the learned Magistrate cannot be struck down merely, because he did not issue a notice to show cause. The petitioners have also submitted a return in form 4 and, on the basis of that return, the sales tax due in a sum of Rs. 67,200 was demanded. The records of the Commercial Tax Officer is brought for a perusal of the court by the learned State Public Prosecutor and from that record it is evident that the said return was filed by the petitioners and under a calculation made on the basis of their return, a sum of Rs. 67,200 was payable as sales tax. In fact, the petitioners have themselves mentioned that amount as payable by them for sales tax. Since under sections 12 and 12-B of the Act, the tax was payable in advance and the same was not paid, the demand notice under form 3-A was issued. In these circumstances, even principles of natural justice never required that a prior notice to show cause should have been given before sending a warrant for attachment and sale of any movable property belonging to the assessee. </p><p>3. It is next contended by the learned counsel that there was no assessment order and the learned Magistrate was required to see the assessment order before he could proceed to issue the warrant for attachment and sale of any movable property. For this the learned counsel relied on a decision in Ganesh Narayana Hedge v. Commercial Tax Officer, Sirsi [[1976] 37 S.T.C. 567; (1976) 1 Kar. L.J. 233]. But the facts of that case were different and that ruling would have no effect in the present case. As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. That apart, no material was produced before the Magistrate even stating as to whether the petitioners were the assessees and as to whether any tax could at all be realised from them. The Magistrate did not apply his mind and issued the distress warrant. In these circumstances, it was held that the order of the Magistrate was illegal and could not be sustained. The position in the instant case is entirely different. The file of the Commercial Tax Officer does indicate that the petitioners themselves filed a return and calculated the amount of tax payable by them. The very same tax was demanded from the petitioners under a notice of demand. Firstly, they ought to have paid the tax in advance which they never did. Secondly, the demand notice was issued and again they failed to pay the tax. In view of sections 12 and 12-B of the Act, decidedly that was the amount due under the Act from such a dealer. As such, upon the plain language of section 13(3), the amount due was recoverable as if it were a fine imposed by a Magistrate. Thus, the said ruling relied upon by the learned counsel will not be of any help to the petitioners. An assessment order was not required, as under section 12-B, the tax was an amount due under the Act from such dealer. In fact, that was the amount pointed out by the dealer himself as payable by him. Therefore, the order of the learned Magistrate cannot be questioned on this ground that either he did not apply his mind or that he did not see the required documents before issuing the distress warrant. </p><p>4. The learned counsel then pointed out that the warrant issued was vague inasmuch as it did not specify the particular lorry which was to be attached. That was not the requirement of law. Under section 421, the warrant had to specify for the attachment and sale of any movable property belonging to the assessee. It could not be contemplated that the lorry or any other movable property would at all be available for attachment at the time the order was to be served upon the assessee. Therefore, no exception can be taken to the form of the warrant issued. It was rather the correct warrant and provided for all that was required under law to be provided for. </p><p>5. An ingenious argument was raised by the learned counsel for the petitioners with reference to section 421 of the Code of Criminal Procedure. It was stated that the learned Magistrate could not impose a fine exceeding Rs. 5,000 and, therefore, the issue of distress warrant for recovery of Rs. 67,200 by attachment and sale of property was an act beyond the jurisdiction of the Magistrate. For that, the learned counsel relied on a Division Bench case of this Court in Mohanlal Premchand v. Commercial Tax Officer [[1971] 28 S.T.C. 492; (1971) 1 Mys. L.J. 72]. But, that case related to the unamended section 13(3)(b). The language 'notwithstanding anything contained in the Code of Criminal Procedure, 1898' was not there before 1972. That is why, the Division Bench of this Court came to the conclusion that the Magistrate issuing the warrant of distress could not ask for recovery of an amount exceeding his own power to levy fine. The above-noted language used in sub-section (3)(b) rather makes the position clear. The limit imposed by the legislature on the levy of fine will no longer hold goods and the Magistrate would realise the amount 'as if it were a fine imposed by him' notwithstanding that the amount to be recovered is much more than the fine which could be imposed by him. </p><p>6. In this view of the matter, I do not find any defect in the order made by the learned Magistrate. As such, no revision is sustainable against that order. The petition is, therefore, dismissed. </p><p>7. Petition dismissed. <p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[1977]40STC320(Kar)', 'ratiodecidendi' => '', 'respondent' => 'The Commercial Tax Officer, Mysore Circle, Mysore', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ) $casename_url = 's-dasappa-company-vs-commercial-officer' $args = array( (int) 0 => '371016', (int) 1 => 's-dasappa-company-vs-commercial-officer' ) $url = 'https://sooperkanoon.com/case/amp/371016/s-dasappa-company-vs-commercial-officer' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>Lal, J. ', (int) 1 => '<p>1. This is a criminal revision under section 13(4) of the <a>Karnataka Sales Tax Act, 1957</a> (hereinafter to be referred to as the 'Act'), and it arises in the following circumstances : ', (int) 2 => '<p>M/s. S. Dasappa and Company is said to be a partnership firm having their place of business at Santepet, Kollegal, District Mysore. It is not disputed that they are assessees under the Act and, accordingly, under sections 12 and 12-B of the Act, they were liable to submit returns for assessment. They were also liable to pay the tax in advance. It is again beyond the pale of controversy that M/s. S. Dasappa and Company, the present petitioners, submitted the annual return under section 12 in form 4, but did not pay any tax in advance. The Commercial Tax Officer issued a notice of demand under form 3-A under rule 18(1)(c) made under the Act. Despite that notice of demand, the tax was not paid. Accordingly, it was considered by the department that the tax was an amount due under the Act from such dealer. Under section 13(3)(b), the Commercial Tax Officer filed an application before the Magistrate that the amount be realised as if it were a fine imposed by him. Thereafter, a distress warrant was issued by the Magistrate and a lorry belonging to the petitioners was attached. Against that order passed by learned Magistrate, the present revision is filed under sub-section (4) of section 13 of the Act. ', (int) 3 => '<p>2. The learned counsel for the petitioners contended that before issuing a distress warrant, the Magistrate was required to issue a notice to show cause. These is no requirement for such a prior notice under section 421 of the Code of Criminal Procedure. Similarly, there is no provision for a prior notice to show cause under section 13(4) of the Act. Therefore, the order of the learned Magistrate cannot be struck down merely, because he did not issue a notice to show cause. The petitioners have also submitted a return in form 4 and, on the basis of that return, the sales tax due in a sum of Rs. 67,200 was demanded. The records of the Commercial Tax Officer is brought for a perusal of the court by the learned State Public Prosecutor and from that record it is evident that the said return was filed by the petitioners and under a calculation made on the basis of their return, a sum of Rs. 67,200 was payable as sales tax. In fact, the petitioners have themselves mentioned that amount as payable by them for sales tax. Since under sections 12 and 12-B of the Act, the tax was payable in advance and the same was not paid, the demand notice under form 3-A was issued. In these circumstances, even principles of natural justice never required that a prior notice to show cause should have been given before sending a warrant for attachment and sale of any movable property belonging to the assessee. ', (int) 4 => '<p>3. It is next contended by the learned counsel that there was no assessment order and the learned Magistrate was required to see the assessment order before he could proceed to issue the warrant for attachment and sale of any movable property. For this the learned counsel relied on a decision in Ganesh Narayana Hedge v. Commercial Tax Officer, Sirsi [[1976] 37 S.T.C. 567; (1976) 1 Kar. L.J. 233]. But the facts of that case were different and that ruling would have no effect in the present case. As observed by the learned Judge in that case, the Magistrate issued the distress warrant without clearly stating whether the warrants were to be issued for attachment and sale of movable properties. That apart, no material was produced before the Magistrate even stating as to whether the petitioners were the assessees and as to whether any tax could at all be realised from them. The Magistrate did not apply his mind and issued the distress warrant. In these circumstances, it was held that the order of the Magistrate was illegal and could not be sustained. The position in the instant case is entirely different. The file of the Commercial Tax Officer does indicate that the petitioners themselves filed a return and calculated the amount of tax payable by them. The very same tax was demanded from the petitioners under a notice of demand. Firstly, they ought to have paid the tax in advance which they never did. Secondly, the demand notice was issued and again they failed to pay the tax. In view of sections 12 and 12-B of the Act, decidedly that was the amount due under the Act from such a dealer. As such, upon the plain language of section 13(3), the amount due was recoverable as if it were a fine imposed by a Magistrate. Thus, the said ruling relied upon by the learned counsel will not be of any help to the petitioners. An assessment order was not required, as under section 12-B, the tax was an amount due under the Act from such dealer. In fact, that was the amount pointed out by the dealer himself as payable by him. Therefore, the order of the learned Magistrate cannot be questioned on this ground that either he did not apply his mind or that he did not see the required documents before issuing the distress warrant. ', (int) 5 => '<p>4. The learned counsel then pointed out that the warrant issued was vague inasmuch as it did not specify the particular lorry which was to be attached. That was not the requirement of law. Under section 421, the warrant had to specify for the attachment and sale of any movable property belonging to the assessee. It could not be contemplated that the lorry or any other movable property would at all be available for attachment at the time the order was to be served upon the assessee. Therefore, no exception can be taken to the form of the warrant issued. It was rather the correct warrant and provided for all that was required under law to be provided for. ', (int) 6 => '<p>5. An ingenious argument was raised by the learned counsel for the petitioners with reference to section 421 of the Code of Criminal Procedure. It was stated that the learned Magistrate could not impose a fine exceeding Rs. 5,000 and, therefore, the issue of distress warrant for recovery of Rs. 67,200 by attachment and sale of property was an act beyond the jurisdiction of the Magistrate. For that, the learned counsel relied on a Division Bench case of this Court in Mohanlal Premchand v. Commercial Tax Officer [[1971] 28 S.T.C. 492; (1971) 1 Mys. L.J. 72]. But, that case related to the unamended section 13(3)(b). The language 'notwithstanding anything contained in the Code of Criminal Procedure, 1898' was not there before 1972. That is why, the Division Bench of this Court came to the conclusion that the Magistrate issuing the warrant of distress could not ask for recovery of an amount exceeding his own power to levy fine. The above-noted language used in sub-section (3)(b) rather makes the position clear. The limit imposed by the legislature on the levy of fine will no longer hold goods and the Magistrate would realise the amount 'as if it were a fine imposed by him' notwithstanding that the amount to be recovered is much more than the fine which could be imposed by him. ', (int) 7 => '<p>6. In this view of the matter, I do not find any defect in the order made by the learned Magistrate. As such, no revision is sustainable against that order. The petition is, therefore, dismissed. ', (int) 8 => '<p>7. Petition dismissed. <p>', (int) 9 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 10 $i = (int) 9include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109