Karnataka High Court
M. Basavaraju vs The Assistant Commissioner Of Sales Tax ... on 13 December, 1985
Equivalent citations: 1986(1)KARLJ142, [1986]62STC294(KAR)
ORDER Rajasekhara Murthy, J.
1. The petitioner was assessed to sales tax under the Bombay Sales Tax Act, 1959. He was due in a sum of Rs. 43,119 towards sales tax outstanding to the State of Maharashtra. Since the petitioner defaulted in paying the arrears of tax, action was taken under the Revenue Recovery Act (Central Act 1 of 1890) (hereinafter called the Act) and a certificate for recovery was forwarded by the Assistant Commissioner of Sales Tax (III), Enforcement, Bombay City Division, Bombay, to the Collector, Bombay, for onward transmission of the said certificate to the Collector, Bangalore, within whose jurisdiction the petitioner-defaulter resides.
2. On receipt of the certificate (annexure B) for recovery from the Collector, Bombay, the Collector of Bangalore initiated proceedings for recovery from the petitioner. The petitioner has challenged the proceedings in this writ petition.
3. The only prayer made in the writ petition is to quash the notice dated 16th May, 1984 (annexure A), issued by the Special Tahsildar for PUC & Misc. Recoveries, Bangalore, bearing No. MSC, DIG-15/84-85. After notice was issued to the respondents regarding Rule, they entered appearance, and the first respondent, Assistant Commissioner of Sales Tax (III), Enforcement, Bombay City Division, Bombay, has also filed his written objections in Writ Petition No. 20187 of 1981 which is filed by M/s. Raja Silk House (P.) Limited, Bangalore.
4. The sole ground on which the recovery proceedings is challenged in this writ petition is that the certificate for recovery forwarded by the Collector, Bombay, under the signature of the Assistant Commissioner of Sales Tax (III), Enforcement, Bombay, is not in accordance with law and, therefore, it should be set aside.
5. Sri K. N. Keshavanarayan, learned counsel for the petitioner, has taken me through the Revenue Recovery Act of 1890, and sections 3 and 5 of the Act which are relevant for this case. According to the learned counsel's submission this is not a case which is covered by the provisions of section 3 since it was not an arrear of land revenue payable to the Collector. But, on the other hand, these are public demands such as arrears of sales tax which are governed by the procedure referred to in section 5 of the Act. Under section 5 in respect of any sum recoverable as arrears of land revenue by any public officer other than a Collector or by any local authority, the Collector of the district is empowered to collect the said sum as if it was an arrear of land revenue which has accrued in his own district and recover the same in accordance with law.
6. Sri Dattu, learned Government Advocate, has produced before me, the recovery file of the Deputy Commissioner, Bangalore, which contains the certificate forwarded by the Collector of Bombay, to recover arrears of sales tax due from the petitioner. It is seen from the certificate that the Assistant Commissioner of Sales Tax (III), Enforcement, Bombay, has signed the certificate for the Collector of Bombay. This is objected to by the counsel for the petitioner that the same is not in accordance with sections 3 and 5 of the Act.
7. There is no dispute that the arrears of sales tax due to the State of Maharashtra can be recovered as an arrear of land revenue. It is also the case of respondent 1, who has filed the affidavit in this case, that he has signed the certificate for recovery on behalf of the Collector of Bombay, by virtue of the power delegated to him by the Collector to do so. Such a power to sign the certificate for recovery is conferred on the Collector under sub-section (2) of section 3 of the Act.
8. Therefore, on the facts of the case, it is argued on behalf of respondents 2 and 3 that the certificate is valid in law and does not suffer from any defects. According to the submission of Sri Dattu, the Collector of Bombay, delegated his power to the first respondent to sign the certificate and forward the same to the Collector of Bangalore to effect recovery of the arrear of sales tax.
9. It is argued for the petitioner that such a delegation is not permissible in respect of a public demand other than land revenue payable to the Collector of the district. Therefore, the question for consideration is whether the certificate forwarded and signed by the first respondent on behalf of the Collector of Bombay is a valid certificate ?
10. The provisions of sections 3 and 5 of the Act have been interpreted on several occasions before the High Court of Madras, High Court of Andhra Pradesh, and High Court of Karnataka.
11. Taking the first of the cases, namely, the decision of the High Court of Madras in Sri Raja Venkata Ramayya Appa Rao Bahadur Varu v. Collector of Madras , wherein the meaning of arrear of land revenue recoverable under sections 3 and 5 came up for interpretation. Subba Rao, J. (as he then was), observed that section 3 applies only to a case where the land revenue or a sum recoverable as arrear of land revenue is payable to the Collector. Dealing with the scope of section 5 his Lordship held that the word "recoverable" used in section 5 refers to any other public demand other than the land revenue payable to the Collector which is referred to in section 3, and, further, section 5 provides for the mode of recovery of such demands through the machinery of revenue recovery entrusted to the Collector.
12. The argument of the counsel for the petitioner is that in all cases where a public demand other than land revenue is to be recovered the certificate for recovery should be forwarded by the Collector who is entrusted with the recovery to the Collector of the other region where the defaulter resides.
13. On the other hand, the two decisions of this Court in K. Burman v. Commercial Tax Officer, Calcutta [1971] 28 STC 637; (1971) 2 Kar LJ 379 and J. H. M. Kataria v. Collector of Bombay, Recovery of Sales Tax (1983) 2 Kar LJ 518 and the decision of the Andhra Pradesh High Court in Somasudarshan Goud v. District Collector, Hyderabad are relied upon by the counsel for the petitioner in support of his contention.
14. The first decision to be referred in this connection is the decision of this Court in K. Burman's case [1971] 28 STC 637; (1971) 2 Kar LJ 379. That was a case in which the Commercial Tax Officer of Calcutta issued a certificate for collection under the Bengal Public Demands Recovery Act, 1913, to the Collector of 24 Parganas, West Bengal, who, in turn issued a certificate under the Central Act 1 of 1890 to the Deputy Commissioner, Bangalore, who took steps for recovery under the Mysore Land Revenue Code. The petitioner-assessee in default was residing in Bangalore and his property in Bangalore was also within the jurisdiction of the Deputy Commissioner, Bangalore. The petitioner raised a question as to the validity of the certificate issued by the Collector of 24 Parganas, West Bengal, and the enforceability of the same in the State of Mysore. This Court held on an analysis of sections 3 and 5 of the Act, that when a certificate is issued in respect of any sum which is declared as recoverable as an arrear of land revenue, the Collector is required to proceed to recover the same as if it were an arrear of land revenue accruing in his own district and he is also empowered to send the certificate to the Collector of another district for enforcement in exercise of his powers conferred in section 3. Therefore, on this reasoning, this Court upheld the validity of the certificate issued by the Collector of 24 Parganas, West Bengal, to the Deputy Commissioner, Bangalore.
15. In Somasudarshan Goud's case the Andhra Pradesh High Court held that a combined reading of sections 3 and 5 of the Act clearly established that a Collector may issue a certificate under section 3 not only in respect of sums recoverable as land revenue and payable to the Collector but also in respect of sums recoverable as land revenue by public officers other than the Collector or by local authority. That was a case of recovery of arrears of land revenue by the excise officials of Maharashtra and in pursuance to the certificate for recovery issued by the Collector of Bombay to the Collector of Hyderabad. A contention was raised in that case that such a certificate shall be signed only by the Collector and not by any person to whom such power is delegated. This contention was raised since it was a certificate issued under section 3 of the Act and the arrears of revenue related to the arrears payable to the excise department in the State of Maharashtra. Therefore, the contention advanced on behalf of the petitioner that the certificate issued by the Collector of Bombay was illegal, and, inasmuch as, the amount was not payable to the Collector of Bombay, was not countenanced.
16. The other contention advanced by the petitioner therein was that the certificate issued under section 3 of the Act was not signed by the Collector. Dealing with this aspect it was held that under sub-section (2) of section 3 the Collector may delegate the power of signing the certificate to any officer. Therefore, the certificate issued and signed on behalf of the Collector by virtue of the delegation of such power under section 3(2) was held valid.
17. The position that emerges from the rulings of this Court in Burman's case [1971] 28 STC 637; (1971) 2 Kar LJ 379 and that of the High Court of Andhra Pradesh in Somasudarshan Goud's case is that under the provisions of sub-section (2) of section 3 of the Act any certificate for recovery, which is intended for being transmitted to the Collector of other district, can be signed by any officer who is delegated with that power by the Collector.
18. In this case the Assistant Commissioner of Sales Tax (III), Enforcement, Bombay, has filed an affidavit to the effect that he was authorised to sign the certificate by the Collector of Bombay. Therefore, the contention of the petitioner that the certificate for recovery forwarded by the Collector of Bombay to the Deputy Commissioner, Bangalore, is illegal and unenforceable has to be negatived. By the combined reading of sections 3 and 5 of the Act any recovery of a public demand is treated as arrear of land revenue payable to the Collector of the district under section 3 of the Act. As a consequence the delegation by the Collector of the district to sign the certificate on his behalf is also valid. Therefore, all contentions urged by the counsel for the petitioner are rejected.
19. For the reasons stated above this writ petition is dismissed, and the rule issued is discharged. No costs.
20. Writ petition dismissed.