Secretary, Coorg Orange Growers Co-operative Society Vs. Assistant Commercial Tax Officer - Court Judgment

Excerpt:
(a) karnataka sales tax act, 1957 (karnataka act no. 25 of 1957) - section 13(3)(b) as amended by in 1972 & 1978 - magistrate's powers for issuing warrant for recovery of tax due, held, unlimited as to amount due.;a magistrate acting on an application under section 13(3)(b) of the act can issue warrant for any amount as if it were fine, notwithstanding what is contained in section 29(2) of the code of criminal procedure, in view of the amendments brought about to section 13(3)(b) of the act in the year 1972 and 1978.;(b) criminal procedure code, 1973 (central act no. 2 of 1974) - section 421(1)(a) & (b) - magistrate issuing warrant for levy of fine - in this case, recovery of arrears of tax due, - against petitioner without holding enquiry - held, magistrate to hear objections before issuing warrant. - section 138 & 139: [arali nagaraj, j] presumption that holder received cheque for discharge of debt held, the presumption under section 139 of the act extends only to the issuing of cheque towards discharge of a legally enforceable debt or liability and it has to be raised only after the complaint establishes that such debt or liability in fact existed as on the date of the cheque in question and that the cheque was given to him by the accused. therefore, since the very fact that the complainant lent to the accused a loan of rs.70,000/- and the accused issued in favour of the complaint and delivered to her cheque for the said loan amount of rs. 70,000/- have not been established by the complainant, no presumption under section 139 of n.1 act could be raised in favour of the complainant that the said cheque was issued by the accused towards discharge of the alleged loan amount. - 5,000/-.the learned government pleader contends that the issuance of warrant is in accordance with law since the revision petitioner failed to make payment after once he appeared in court and took time. 166/94 makes it clear that the revision petitioner who put in appearance in court on july 28, 1995 and took time for payment failed to make payment. thereafter, it is not even shown to the court that the notification would ensure to his benefit and the warrant issued for collecting the amount is bad in law. the assessee in the case on hand is a society and therefore the learned magistrate would have done well by issuing warrant under section 421(1)(a) at the first instance.b.n. mallikarjuna, j.1. issuance of warrant to collect a sum of rs. 71,399/- on march 16, 1995 in c.misc. 166/94 on the file of the additional munsiff at virajpet on an application by the respondent under section 13(3)(b) of the act is called in question in this revision.heard the learned counsel for the revision petitioner and the learned government pleader.2. the learned counsel contends that in view of the fact that revision petitioner is a state industrial undertaking, the court was not right in issuing fine levy warrant on march 16, 1995 in view of government notification ci 16 pum 94 dated december 31, 1994. further he submitted that subsequent to the filing of the revision petition, he has made a payment of rs. 5,000/-. the learned government pleader contends that the issuance of warrant is in accordance with law since the revision petitioner failed to make payment after once he appeared in court and took time.3. government on december 31, 1994 issued notification extending certain concession to state industrial undertakings. a perusal of the order sheet in misc.no. 166/94 makes it clear that the revision petitioner who put in appearance in court on july 28, 1995 and took time for payment failed to make payment. thereafter, it is not even shown to the court that the notification would ensure to his benefit and the warrant issued for collecting the amount is bad in law.4. on an application under section 13(3)(b) for recovery of the tax due what the learned magistrate is required to do is to decide as to whether action for recovery of the amount under section 422(1)(a) or (b) of the cr.p.c. can be taken and then to take action accordingly. here a perusal of the order sheet does not disclose that the learned magistrate before ordering for issue of warrant decided as to whether action as contemplated under section 421(1)(a) or (b) could be taken. the assessee in the case on hand is a society and therefore the learned magistrate would have done well by issuing warrant under section 421(1)(a) at the first instance. whatever that may be, it is just and appropriate to remit the matter to the learned magistrate with a direction to provide an opportunity to the revision petitioner to plead the discharge if any or the concession available under the notification and then to dispose of the matter in accordance with law.the learned counsel for the revision petitioner contended that in view of law laid down by this court in mohanlal premchand v. cto and anr. 1971(1) mys.l.j. 72 and in view of sub-section (2) of section 29 cr.p.c., the magistrate could not have initiated proceedings to recover any amount exceeding rs. 5,000/-. i do not find merit in this argument. sub-section (b) of sub-section (3) of section 13 of the sales tax act is amended in the year 1972 and again in the year 1978. section now reads thus:'notwithstanding anything contained in the code of criminal procedure on an application under section 13(3)(b), the magistrate can proceed to recover any amount, as if it were a fine imposed by him.' therefore, the law laid down in mohanlal's case no longer holds the field. a magistrate acting on an application under section 13(3)(b) of the act can issue warrant for any amount as if it were fine, notwithstanding what is contained in section 29(2) of the code of criminal procedure, in view of the amendments brought about to section 13(3)(b) of the act in the year 1972 and 1978.5. in the result, this revision petition is allowed. the matter is remitted back to the learned magistrate with a direction to afford an opportunity to the revision petitioner to file his counter pleading payment if any and to proceed to dispose of the matter after hearing the parties in accordance with law. the revision petitioner is directed to appear before the learned magistrate on october 24, 1996.