Karnataka High Court
Torgal Distilleries Pvt. Ltd. vs Deputy Commissioner Of Commercial ... on 29 March, 2004
Equivalent citations: [2006]146STC420(KAR), 2004 AIR - KANT. H. C. R. 2076
Author: D.V. Shylandra Kumar
Bench: D.V. Shylendra Kumar
ORDER D.V. Shylandra Kumar, J.
1. Petitioner is a dealer under the provisions of the Karnataka Sales Tax Act, 1957. For the accounting periods 1998-99, 1999-2000 and 2000-2001, the petitioner was admittedly in arrears of tax to the tune of Rs. 1,08,69,687 and after realising a sum of Rs. 15 lakhs from out of this amount the petitioner was called upon to pay the balance of Rs. 93,69,687 as per notice dated March 26, 2002, copy at annexure A, issued to the petitioner. The said notice was a recovery notice. The petitioner not having paid this amount for a considerable length of time it appears the authorities under the Act have resorted to various recovery proceedings under the Act itself. It is aggrieved by such recovery proceedings the petitioner has approached this Court for relief.
2. Sri S.G. Shivaram, learned Counsel for the petitioner, submits that the petitioner was in dire financial difficulties, that the petitioner had made his best efforts to pay as much tax as possible, that he has been in fact paying the amounts periodically but found it difficult to pay the entire tax amount that was due to the State, but in the meanwhile due to crippling coercive recovery proceedings such as attaching the petitioner's manufacturing unit as also some other godowns and places of business of the petitioner and simultaneously issuing notice Under Section 14 of the Act to various dealers and distributors of the petitioner who owed money to the petitioner, all sources of income to the petitioner has dried up and the petitioner is virtually made to suffocate and unless such coercive proceedings are relented and the petitioner is permitted to carry on its business petitioner will not be in a position to pay any tax.
3. Learned Counsel for the petitioner further submits that the recovery action that has been taken by the respondents has not only caused great loss to the petitioner but also to the State exchequer as the petitioner's unit has been closed down since December 19, 2001 and significant amounts of revenue to the State Government both under the State Excise Act and the Karnataka Sales Tax Act have dried up. In support of the submission that the authorities cannot resort to simultaneous recovery proceedings learned Counsel for the petitioner has placed reliance on the decision reported in the case of State of Mysore v. S.S. Yalamali .
4. Further an application is filed under the provisions of Order 6, rule 4 of the Code of Civil Procedure seeking for permission of the court to place proper particulars before the court in these writ petitions.
5. Statement of objections has been filed on behalf of the respondents. Petition averments are disputed, inter alia, contending that though the petitioner being in arrears of considerable amount of tax dues was not at all paying the amounts and as such it became necessary for the respondents to resort to coercive recovery proceedings as otherwise the Revenue would have lost the amount for good. It is also stated that such coercive proceedings were resorted to only after giving ample opportunity to the petitioner to make good the admitted tax. Learned Government Pleader appearing for the respondents while submitting that these petitions are without merit and are liable to be dismissed has brought to my notice another decision of this Court in the case of Ali Agro Extract Pvt. Ltd. v. Assistant Commissioner of Commercial Taxes reported in [2006] 146 STC 373; (2003) 55 Kar LJ 322. It is the submission of learned Government Pleader placing reliance on this decision that simultaneous recovery proceedings under various modes of recovery is permitted.
6. Petitioner has also filed a rejoinder, inter alia, stating that but for the coercive recovery action the petitioner could have very well continued to work, make profit and liquidate the dues.
7. In so far as the tax arrears is concerned the amounts are not in dispute and what is sought to be disputed is that certain payments made have not been given proper credit. It is a matter of calculation which can always be worked out. But, the significant aspect is that the petitioner continues to be in arrears of tax. For nonpayment of such arrears of tax the authorities can definitely resort to recovery proceedings. Reliance is placed by the learned Counsel for the petitioner in the case of State of Mysore v. S.S. Yalamali . It is the submission of the learned Counsel for the petitioner that in this decision this Court took the view that the provisions of Section 13 under which the authorities can resort to recover either by the mode of attachment of the properties as though it is an arrears of land revenue or by taking certain other modes of recovery which can be resorted to one after other and not simultaneously. For this proposition this Court relied upon the observations of the Supreme Court while approving the view taken by Mahmood, J., in the case of Shankar Sahai v. Din Dial (1889) ILR 12 All. 409 [FB]. The Supreme Court made this observations in the case of State of Kerala v. C.M. Francis & Co. [1961] 12 STC 119. The observations of the Supreme Court as quoted by this Court in the case of State of Mysore v. S.S. Yalamali [1968] 21 STC 305 is reproduced as under:
It was observed by Mahmood, J., in Shankar Sahai v. Din Dial (1889) ILR 12 All. 409 [FB] that where the law provides two or more remedies, there is no reason to think that one debars the other and therefore both must be understood to remain open to him, who claims a remedy. Unless the statute in express words or by necessary implication laid down that one remedy was to the exclusion of the other, the observations of Mahmood, J., quoted above must apply. In our opinion, in the absence of any such provision in the Act, both the remedies were open to the authorities, and they could resort to any one of them at their option.
8. This Court was persuaded to take the view that the remedy to one or the other mode can only be one at a time and not simultaneous by the use of the words "...........,and they could resort to any one of them at their option."
9. These words were understood that the Supreme Court had approved the view of Mahmood, J., for resorting to a remedy that can only be one at a time and not both simultaneously. On a reading of the observations of the Supreme Court in C.M. Francis & Co. case [1961] 12 STC 119, I am unable to infer such a conclusion. In fact the Supreme Court was approving the view taken by Mahmood, J., that unless recourse to other remedies are simultaneously debarred by the statute itself there is no impediment for such modes of recovery together.
10. Be that as it may. In the present case the action taken against the petitioner as submitted by Sri S.G. Shivaram, learned Counsel for the petitioner, is that (1) Issue of Section 14 notice for recovery of the amounts from the person who owned money to the petitioner and (2) by recourse to attachment of the properties by sealing the factory premises of the petitioner. Notice Under Section 14 has been issued under a different enabling provisions and power of attachment to seal the premises is in exercise of the power Under Section 13(3)(aa) of the Act. This Court had taken the view in the case of S.S. Yalamali [1968] 21 STC 305 that the use of the word "or" from having recourse to the recovery of the revenue to the State by recovering the amount as arrears or fine etc., by a Magistrate cannot be simultaneous. I have my own doubts about the correctness of this view particularly in the context of the observations made by the Supreme Court in CM. Francis case reported in [1961] 12 STC 119. The argument of the learned Counsel for the petitioner is that as the Revenue has resorted to simultaneous recovery proceedings against the petitioner this decision should necessarily apply in this case as it is the case of exercise of power for recovery both under sections 13 and 14 of the Act.
11. In fact learned Government Pleader appearing for the respondents has pointed out that Section 14 notice was issued way back in the year 1999 and as no further realisation was forthcoming from the debtors of the assessee the authorities had virtually abandoned this notice and took recourse to other recovery proceedings by sealing the factory premises.
12. It cannot be said that the authorities have acted either in a hasty or arbitrary manner. Admitted amounts of tax arrears were within the knowledge of the petitioner and even as per notice at annexure A the petitioner had been clearly made aware it as per the demand notice dated March 26, 2002 and had been cautioned that if payment is not made recovery proceedings will be resorted to. Section 14 notice had been issued much earlier to this. Therefore petitioner was aware of the developments all along and it is not as though he has been taken by surprise. This Court had occasion to consider the effect of the decision in the case of Basettiyavar Company v. Commercial Tax Officer [1984] 57 STC 193; (1983) 2 Kar LJ 514 in the case of Ali Agro Extract Pvt. Ltd. v. Assistant Commissioner of Commercial Taxes [2006] 146 STC 373 (Kar); (2003) 55 Kar LJ 322 on which learned Government Pleader has placed reliance. On an examination of the earlier decision of this Court it was held that under the provisions of Section 8(4)(a) of the Karnataka Tax on Entry of Goods into Local Areas for Consumption, Use or Sale Therein Act, 1979 there is no bar for resorting to recovery of tax in arrears by other modes of recovery simultaneously in the absence of an express restricting provisions. The provisions of the Karnataka Sales Tax Act are not any a different and I am in respectful agreement with the view taken by the learned Judge in the case of Ali Agro Extract Pvt. Ltd. v. Assistant Commissioner of Commercial Taxes reported in [2006] 146 STC 373 (Kar); (2003) 55 Kar LJ 322.
13. Until and unless the statutory provisions placed a specific restrictive provisions the same cannot be read into the statute particularly in a provision providing for recovery under a fiscal statute to ensure realisation of the revenue to the State. The provisions of the Karnataka Sales Tax Act expressly provide for the modes of recovery that the authorities have now resorted to and learned Counsel for the petitioner is not in a position to point out any impediment, irregularity or illegality in the exercise of such power.
14. In fact bona fides of the petitioner is also not fully reliable. This Court while granting stay of recovery proceedings, etc., on September 2, 2002 had put the petitioner on terms. This Court found that even as on November 5, 2003 petitioner had not complied with such a conditional order by depositing the amount directed to be deposited by this Court and as such had vacated the interim order.
15. The present writ petitions being only against the recovery proceedings and not questioning the correctness or otherwise of the amounts that are sought to be recovered from the petitioner, there is nothing that is required to be examined in these writ petitions as it is found that the authorities are fully justified in having recourse to such proceedings.
16. In the circumstances no occasion for this Court to issue any writ as sought for in these writ petitions. Writ petitions are dismissed levying cost of Rs. 5,000.