P.V. Raghavulu and Co. Vs. Commercial Tax Officer - Court Judgment

Excerpt:
- all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5 arises only in respect of a tenant who did not take recourse to section 8 or section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. any violation of section 11(1) to (3) and sub-rule (6) of rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of section 11. thus, the provisions of section 11 and sub-rule (6) of rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. the forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under rule 5(6) read with sub-section (1) of section 11. the object and effect of section 11 and sub-rules (1) to (5) to rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. consequently, while taking recourse to section 8 by tenant is optional, once that option is exercised, compliance with sub-rules (1) to (5) of rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. while deposit of rent in terms of provisions of act and the rules amounts to valid tender of rent to landlord, the failure to comply with rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of controller or appellate authority, as the case may be, so as to enable controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of controller within a reasonable time so that rent controller can take necessary action for service of notice of deposit under sub-rule (4) of rule 5 of the rules within seven days of such delivery. in the absence of compliance in so depositing rent and delivering challan in the office of controller, tenant shall be deemed to have committed wilful default. - as it is well-known, groundnuts are declared goods. general sales tax act, such dealer should pay the state tax as well as the central tax and then claim refund of the state tax. 1,18,467 (sic) once again towards the central sales tax for which demand was made and immediately thereafter claiming refund of precisely the same amount, the amount may be adjusted. he, therefore, seeks a direction that this cumbersome process may be avoided and the amount may be adjusted towards the balance of the central tax which is due for the year 1974-75. 3. there is no doubt that as per the provisions of the central as well as the state laws, both the taxes should be paid and then refund should be claimed of the state tax.a. sambasiva rao, c.j.1. the relief now sought is in respect of a somewhat stale claim made by the sales tax department. as it is well-known, groundnuts are declared goods. if inter-state trade is made in respect thereof, central sales tax also is leviable in respect of such trade. as laid down by section 15(b) of the central sales tax act and the proviso to section 6 of the a.p. general sales tax act, such dealer should pay the state tax as well as the central tax and then claim refund of the state tax. but the state government issued on 14th july, 1964, g.o. no. 1094 exempting the declared goods from the levy of central sales tax on condition that the dealers will not claim any refund of the state tax which they have paid. evidently noticing the incongruity of such a notification, the state government revoked it by a notification dated 26th november, 1970. despite the revocation, it appears some of the sales tax authorities continued to collect only the state tax and the difference between the state tax and the central tax whenever there is such difference, thereby dispensing with the need for refund of any amount. despite the revocation, some of the sales tax authorities continued the same procedure and were not collecting the central sales tax but were collecting only the state tax plus the difference between the two taxes.2. for the year 1974-75 also, in so far as the present writ petitioner is concerned, he was a dealer in groundnuts. they were collecting the state tax and the difference between the state tax and the central tax in monthly instalments. towards the state tax that year, the petitioner paid rs. 1,18,467. sometime after the expiry of the assessment year 1974-75, a demand was made against the petitioner for payment of rs. 1,30,180 towards the central tax due for the assessment year 1974-75. it is undoubted that the petitioner paid the difference between the state tax and the central tax due for that year on his dealings in inter-state trade. now he claims that instead of his paying in the first instance a sum of rs. 1,18,467 (sic) once again towards the central sales tax for which demand was made and immediately thereafter claiming refund of precisely the same amount, the amount may be adjusted. he, therefore, seeks a direction that this cumbersome process may be avoided and the amount may be adjusted towards the balance of the central tax which is due for the year 1974-75.3. there is no doubt that as per the provisions of the central as well as the state laws, both the taxes should be paid and then refund should be claimed of the state tax. even though it is an empty formality, since the law requires this procedure, it will have to be followed. that is the undeniable legal position.4. but in the peculiar circumstances of the case, we are inclined to grant the direction which the petitioner seeks. the period for which the demand was made had long ago expired. for years before that, by virtue of g. 0. no. 1094, the sales tax authorities were collecting from the petitioner only the state tax plus the difference between the state tax and the central tax. that was continued even during the year 1974-75, despite the revocation of the above g.o. on 26th november, 1970. since the authorities themselves demanded and collected the amount in the manner aforesaid and since the relevant period had long ago expired, it appears to us to be positively unreasonable to insist on the petitioner to pay the amount of rs. 1,18,467 once again and then immediately thereafter claim refund of the amount. as we have said, that is the true legal position. but, in view of the lapse of so much time and the fact that the departmental authorities themselves collected the amount in the manner in which it was paid in view of g.o. no. 1094, we direct that the amount of rs. 1,18,467 be adjusted by the respondent towards the demand made for the central sales tax due from the petitioner for the assessment year 1974-75. we also direct that this amount be adjusted accordingly and that they shall not collect any amount in this behalf.5. the writ petition is accordingly allowed. there will be no order as to costs. advocate's fee rs. 150,