# THE STATE OF MYSORE v. SHANTA VEERAPPA CHANNA MALLAPPA BOMMANAHALLI & ORS

- **Citation:** [1966] 3 S.C.R. 811
- **Court:** Supreme Court of India
- **Decided:** 1966-03-04
- **Case number:** Criminal Appeals Nos. 150-152 of 1965
- **Bench:** A. K. Sarkar, J. R. Mudholkar, R. S. Bachawat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-of-mysore-v-shanta-veerappa-channa-mallappa-bommanahalli-ors-3749
- **Pages:** 4

## Headnote

Mysoro Sales Tax Act (25 of 1957), ss. 13(3) and 29(l)(d)-Asst3Ut
filing appeal against order of as•essment-No interim stay of proceedings
for recovery of tax-Prosecution for non-payment of tax-Ma/ntainabiC
lity.
The respondent was assessed to sales tax and w .. served with a notice
requiring him to pay the amount within 21 days. He preferred an appeal
against the order of assessment but did not pay the tax, nor did he
obtain an order of stay of proceedings from the appellate authority.
While the appeal w.. pending, a complaint was filed against him under
s. 29(1)(d) of the Mysore Sales Tax Act, 1957, because the demand
D
was not complied with, but the trial court and the High Court acquitted
him.
E
F
G
H
In appeal to this Court by the State,
HELD : The acquittal of the respondent was
unwarranted as his
action in not paying the tax within the time allowed, was deliberate and
therefore wilful, and such failure to pay is rendered an offence under s.
29(l)(d). [814 D, El
The liability to pay tax is created by the order of assessment. Where
the tax so assessed is not paid despite service of notice of demand, the
tax may be recovered under s. 13 ( 3) (a~ .. an arrear of land reyenue
or. under s. 13 ( 3 )(b) on an application to a magistrate as if it were a fine
impooed on the assessee.
Under the proviso to s. 13(3), the assessee
has been afforded interim protection from action under s. 13(3)(a) or (b),
provided he obtains from the appropriate appellate or revisional authority mentioned in the proviso, an order of stay of proceedings.
Merely
because an appeal h.. been preferred, the liability of the assessee to
pay the tax cannot be deemed to be suspended under s.
20(5). Thi•
provision requires that if the order of such appropriate authority lays
down any condition, the proviso requires that the assessee must comply with
it before he can obtain interim relief. Apart from these two methods of
obtaining interim relief, the proviso to s. 13(3) cannot be an answer to a
prosecution under s. 29(l)(d). [813 E-G]
CRIMINAL
APPELLATE
JURISDICTION:
Criminal
Appeals
Nos. 150-152 of 1965.
Appeals by special leave from the judgment and order dated
March 17, 1965 of the Mysore High Court in Criminal Appeals
Nos. 93 to 95 of 1965.
B. R. L. Iyengar and B. R. G. K. Achar, for the appellant.
K. R. Choudhury, for the respondents.
811
812
SUPll.EME COUll.T REPORTS
[1966] 3 S.C.R.
The J udgmcnt of the Court was delivered by
Modbolkar, J. This judgment will also govern Criminal Appeals Nos. 151and152of1965. The respondent was at the relevant
time a dealer at Bijapur in groundnuts, cotton seed and other
commodities and was registered as a dealer under the Mysore
Sales Tax Act, 1957.
For the period between November 12, 1958
and October 31, 1959 he was assessed to sales tax amounting to
Rs. 9,864·31 ps. by the Commercial Tax Officer, Bijapur in
his order dated December 4, 1963. On January 3, 1964 the Commercial Tax Officer served on him a notice of payment requiring
him to pay the tax assessed on him within 21 days.
He was similarly assessed to pay tax for two subsequent periods by two separate
orders passed by the Commercial Tax Officer. Two separate notices
of demand were served on him requiring him to pay the tax assessed
within 21 days.
ll is common ground that the respondent did
not comply with any of the three notices. Three separate complaints
were, therefore, preferred against him by the Commercial Tax
Officer before the Judicial Magistrate, First Class, second court,
Bijapur for offences punishable under s. 29(1)(d) of the Act. The
respondent had preferred appeals against each of the three orders
of assessment under sub-s. (I) of s. 20 of the Act. He did not,
however, pay the tax assessed against him or any portion thereof
as contemplated in the second proviso of sub-s. (1) of s. 20 nor
did he seek or obtain from the appellate authority any order under
the proviso to sub-s. (5) of s. 20. The learned Magistrate held
that since the respondent had pre

## Text

•
,
A
B
THE STATE OF MYSORE
v.
SHANTA VEERAPPA CHANNA MALLAPPA
BOMMANAHALLI & ORS.
March 4, 1966
(A. K. SARKAR, J. R. MUDHOLKAR AND R. S. BACHAWAT, JJ.]
Mysoro Sales Tax Act (25 of 1957), ss. 13(3) and 29(l)(d)-Asst3Ut
filing appeal against order of as•essment-No interim stay of proceedings
for recovery of tax-Prosecution for non-payment of tax-Ma/ntainabiC
lity.
The respondent was assessed to sales tax and w .. served with a notice
requiring him to pay the amount within 21 days. He preferred an appeal
against the order of assessment but did not pay the tax, nor did he
obtain an order of stay of proceedings from the appellate authority.
While the appeal w.. pending, a complaint was filed against him under
s. 29(1)(d) of the Mysore Sales Tax Act, 1957, because the demand
D
was not complied with, but the trial court and the High Court acquitted
him.
E
F
G
H
In appeal to this Court by the State,
HELD : The acquittal of the respondent was
unwarranted as his
action in not paying the tax within the time allowed, was deliberate and
therefore wilful, and such failure to pay is rendered an offence under s.
29(l)(d). [814 D, El
The liability to pay tax is created by the order of assessment. Where
the tax so assessed is not paid despite service of notice of demand, the
tax may be recovered under s. 13 ( 3) (a~ .. an arrear of land reyenue
or. under s. 13 ( 3 )(b) on an application to a magistrate as if it were a fine
impooed on the assessee.
Under the proviso to s. 13(3), the assessee
has been afforded interim protection from action under s. 13(3)(a) or (b),
provided he obtains from the appropriate appellate or revisional authority mentioned in the proviso, an order of stay of proceedings.
Merely
because an appeal h.. been preferred, the liability of the assessee to
pay the tax cannot be deemed to be suspended under s.
20(5). Thi•
provision requires that if the order of such appropriate authority lays
down any condition, the proviso requires that the assessee must comply with
it before he can obtain interim relief. Apart from these two methods of
obtaining interim relief, the proviso to s. 13(3) cannot be an answer to a
prosecution under s. 29(l)(d). [813 E-G]
CRIMINAL
APPELLATE
JURISDICTION:
Criminal
Appeals
Nos. 150-152 of 1965.
Appeals by special leave from the judgment and order dated
March 17, 1965 of the Mysore High Court in Criminal Appeals
Nos. 93 to 95 of 1965.
B. R. L. Iyengar and B. R. G. K. Achar, for the appellant.
K. R. Choudhury, for the respondents.
811
812
SUPll.EME COUll.T REPORTS
[1966] 3 S.C.R.
The J udgmcnt of the Court was delivered by
Modbolkar, J. This judgment will also govern Criminal Appeals Nos. 151and152of1965. The respondent was at the relevant
time a dealer at Bijapur in groundnuts, cotton seed and other
commodities and was registered as a dealer under the Mysore
Sales Tax Act, 1957.
For the period between November 12, 1958
and October 31, 1959 he was assessed to sales tax amounting to
Rs. 9,864·31 ps. by the Commercial Tax Officer, Bijapur in
his order dated December 4, 1963. On January 3, 1964 the Commercial Tax Officer served on him a notice of payment requiring
him to pay the tax assessed on him within 21 days.
He was similarly assessed to pay tax for two subsequent periods by two separate
orders passed by the Commercial Tax Officer. Two separate notices
of demand were served on him requiring him to pay the tax assessed
within 21 days.
ll is common ground that the respondent did
not comply with any of the three notices. Three separate complaints
were, therefore, preferred against him by the Commercial Tax
Officer before the Judicial Magistrate, First Class, second court,
Bijapur for offences punishable under s. 29(1)(d) of the Act. The
respondent had preferred appeals against each of the three orders
of assessment under sub-s. (I) of s. 20 of the Act. He did not,
however, pay the tax assessed against him or any portion thereof
as contemplated in the second proviso of sub-s. (1) of s. 20 nor
did he seek or obtain from the appellate authority any order under
the proviso to sub-s. (5) of s. 20. The learned Magistrate held
that since the respondent had preferred appeals against the orders
of assessment and those appeals were still pending when the complaints were made before him the respondent was not liable for
offences under s. 29 (I) (d). On this ground the learned Magistrate
acquitted the respondent in all the three cases. Appeals preferred
by the State of Mysore against the orders of acquittal passed in
favour of the respondent were rejected by the High Court on the
ground that as the State could avail itself of other remedies under
the Act for enforcing the payment of tax levied on the respondent
it did not think it fit to exercise its discretion under s. 421 (I) of
the Code of Criminal Procedure and entertain the appeals.
Mr. Chaudhuri refers to the proviso to sub-s. (3) of s. 13 and
contends that unless the requirements of the proviso are satisfied
he is not liable to be proceeded against under s. 29 (1) (d). In order
to appreciate his argument it is desirable to reproduce the provision
relied upon by him.
Sub-section (3) of s. 13 reads as follows :
A
B
c
D
E
F
G
"Any tax assessed, or any other amount due under this
Act from a dealer, may without prejudice to any other
H
mode of collection, be recovered-
(a) as if it were an arrear of land revenue, or
•
'
A
B
c
D
,
E
•
F
>
G
' ;'
H
STATE v. BOMMANAHALLI (Mudho/kar, J.)
813
(b) on application to any Magistrate, by such
Magistrate as if it were a fine imposed by him:
Provided that no proceeding for such recovery shall
be taken or continued as long as he has, in regard to
the payment of such tax or other amount, as the case
may be, complied with an order by any of the authorities
to whom the dealer has appealed, or applied for revision,
under sections 20, 21, 22, 23 or 24."
The matter dealt with by s. 13 is "payment and recovery of tax".
The substantive part of the provision renders an assessee in arrears
of tax liable to be proceeded against under either cl. (a) or cl. (b)
of the provision. Mr. Chaudhury, however, contends that by
virtue of the proviso an assessee will not be liable to be proceeded
against unless it is shown that he has failed to comply with an order
made by the appropriate authority under one of the sections referred to in the proviso. He points out that though he has preferred
appeals under s. 20 of the Act no order has been made by the appellate authority in any of the appeals dealing with the question of
payment or otherwise of the tax and that, therefore, there has been no
failure on the part of the respondent to comply with an order made
by the appropriate authority. Mr. Chaudhury in effect wants us to
construe the proviso as if it contemplated the creation of liability
to pay the tax by an order of the appropriate authority under one
of the sections specified in the proviso. There is no warrant for
such a construction. The liability to pay tax is created by the
order of assessment. Where tax so assessed is not paid despite
service of notice of demand the substantive portion of sub-s. (3)
of s. 13 renders the assessee liable to be proceeded against under
cl. (a) or cl. (b) of that provision. The assessee who has moved the
appropriate authority under one of the provisions referred to in the
proviso has, however, been afforded interim protection from action
under cl. (a) or cl. (b) provided that he approaches the appropriate
authority and obtains from that authority an order of stay of proceedings under cl. (a) or cl. (b). That, however, is not enough.
If the order of the appropriate authority lays down any condition
the proviso requires that the assessee must comply with those
conditions before he can obtain interim relief under the proviso.
Apart from that, we fail to see how the proviso to sub-s. (3) of s. 13
can at all be an answer to a prosecution under s. 29 (!) (d). What
is rendered an offence under s. 29 (I) (d) is the failure of the assessee
to pay the tax within the time allowed. But where, as here,
the assessee has not paid the tax within the time allowed by a notice
of demand he immediately renders himself liable to be proceeded
against under s. 29 (I) (d).
Mr. Chaudhury then contended that in view of the fact that
an appeal has been preferred the liability of the assessee to pay
814
SUPREME COUJ.T
R.EPOl.TS
[1966] 3 S.C.R.
the tax must be deemed to have been suspended during the pendency
of the appeal. This argument ignores the specific provisions of
sub-s. (5) of s. 20 and the proviso thereto. They read thus :
"Notwithstanding that an appeal has been preferred
under sub-section (I), the tax shall be paid in accordance
with the assessment made in the case :
Provided
that
the appellate
authority may,
in its discretion give
such directions as
it thinks
tit in regard to the payment of the tax before the
disposal of the
appeal, if the appellant
furnishes
sufficient security
to its satisfaction in
such form
and in such manner as may be prescribed."
The provision we have just quoted is a complete answer to
Mr. Chaudhuri's contention. Mr. Chaudhury then contended
that there was no wilful default on the part of the respondent.
It is difficult to appreciate what he means by saying that there
was no wilful default. The respondent knew that he was required
to pay the tax within certain time and also knew that he had not
complied with the notice of demand.
His action in not paying
the tax was quite clearly deliberate and, therefore, wilful. There
is no substance in this contention.
We are, therefore clear that the acquittal of the respondent
A
B
c
D
for offences in the case was unwarranted. We would, therefore,
have, after setting aside his acquittal in each of the three cases,
E
convicted and sentenced him under s. 29 (1) (d) of the Act but
for the fact that when special leave was granted an undertaking
was given by the State that irrespective of the result of the appeal
the respondent would not be prosecuted. Probably what was
meant was that the State would not press for conviction and sentence of the respondent. Therefore, though we allow the appeals
F
and set aside the acquittal of the respondent in the three cases we
leave the matter just there.
Appeals allowed.
•