Jagadeeswari Oil Trading Co. vs The Assistant Commercial Tax Officer, Collection Wing, Madras and Another

Nainar Sundaram, J.—The petitioners are assessees under the Tamil Nadu General Sales Tax Act, 1959 (Tamil Nadu Act 1 of 1959),

hereinafter referred to as the Act. In respect of the assessment years 1976-77 and 1977-78 action is being taken by the first respondent to

recover the taxes. The first respondent admittedly filed an application before the Seventh Metropolitan Magistrate, George Town, Madras, u/s

24(2)(b) of the Act. It is stated on behalf of the respondents that the said application C.T.M.P. No. 246 of 1977 was withdrawn on 1st March,

1978. But the fact remains that the first respondent has set in motion the process u/s 24(2)(a) of the Act for recovery of the aforesaid taxes as if

they were arrears of land revenue. The first respondent issued a distraint notice dated 31st January, 1979, under the Tamil Nadu Revenue

Recovery Act (2 of 1864). The petitioners challenge this distraint notice in the present writ petition.

Mr. K. Venkatasubba Raju, the learned counsel for the petitioners, states that the application u/s 24(2) is being freshly prosecuted against the

petitioners and the petitioners are not aware of the withdrawal of C.T.M.P. No. 246 of 1977 on 1st March, 1978, as stated by the respondents.

The learned counsel states that on a proper construction of section 24(2), it should be held that if the authority is prosecuting an application before

a Magistrate u/s 24(2)(b) of the Act, the process u/s 24(2)(a) will stand excluded and the authority cannot resort simultaneously to the processes

both under clauses (a) and (b) of sub-section (2) of section 24. In support of this proposition he relies on a judgment of Sadasivayya, J., of the

Mysore High Court in State of Mysore v. S. S. Yalamali [1968] 21 STC 305. On a proper construction of the provision referred to above, I am

inclined to agree with the learned counsel for the petitioners.

Section 24(2), as it stood at the relevant point of time, reads as follows :

Payment and recovery of tax. - .......................

(2) Any tax assessed on, or any other amount due under this Act from, a dealer or person and any fee due from him under this Act, may without

prejudice to any other mode of collection be recovered -

(a) as if it were an arrear of land revenue, or

(b) on application to any Magistrate, by such Magistrate as if it were a fine imposed by him.

It must be pointed out that even after the amendment introduced in 1980, clauses (a) and (b) have not been altered at all. Clause (a) of sub-

section (2) of section 24 relates to the recovery of the tax as if it were an arrear of land revenue. Clause (b) relates to the relates to the recovery of

arrears on application to any Magistrate, by such Magistrate as if it were a fine imposed by him. The two remedies are definitely distinct and

separate. After clause (a) the word ""or"" has been consciously incorporated in the provision. This word is portent, and to a very great extent, it

indicates that the remedy under clause (a) is to the exclusion of the remedy under clause (b). It is true when there are two or more remedies

prescribed by law, there is no justification to hold that one excludes the other and normally, both the remedies are available to the person who

claims them. Such is the dictum expressed by Mahmood, J., in Shankar Sahai v. Din Dial ILR(1890) All 409 . This dictum of Mahmood, J., was

referred to by the Supreme Court in State of Kerala and Others Vs. C.M. Francis and Co., . There, the Supreme Court was considering section

13 of Travancore-Cochin General Sales Tax Act (11 of 1125) which provided for the recovery of the tax as if it were an arrear of land revenue

vis-a-vis section 19 of the Act which provided for conviction of the assessee on failure to pay the tax on the contingencies set out therein and the

recovery of the tax as if it were a fine under the Code of Criminal Procedure. The Supreme Court observed :

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.

However, in the absence of any such provision in the Travancore-Cochin General Sales Tax Act (11 of 1125), the Supreme Court opined that

both the remedies are open to the authorities and they could resort to any one of them at their option.

Coming to section 24(2) of the Act, as pointed out above, the word ""or"" not only expresses but also indicates by implication that the remedy

under clause (a) of sub-section (2) of section 24 is to the exclusion of the other, namely, clause (b), of the said section and vice versa. Hence, if the

authority under the Act resorts to the remedy under clause (a) of sub-section (2) of section 24, it will not be open for him to concurrently and

simultaneously resort to the process under clause (b) of sub-section (2) of section 24 and vice versa. While considering similar provisions under the

Mysore Sales Tax Act, 1957, Sadasivayya, J., in State of Mysore v. S. S. Yalamali [1968] 21 STC 305 relied on by the learned counsel for the

petitioners, has taken a similar view and I am in respectful agreement with the same.

One factual controversy is being raised before me and that is with reference to the pendency of the proceedings u/s 24(2)(b) of the Act. While

the learned counsel for the petitioners states that the said proceedings are pending, Mr. Lokapriya, the learned counsel appearing on behalf of the

learned Government Pleader, states that no such proceedings are pending and they have been withdrawn. Since I have adjudicated the contention

raised by the petitioners on principle, I think the proper order to issue would be to direct the first respondent not to prosecute the remedies both

the under clauses (a) and (b) of sub-section (2) of section 24 concurrently and simultaneously, but he is at liberty to resort to one of the two, only,

at a time. This writ petition is ordered accordingly. There will be no order as to costs.