Shyama Charan Shukla vs The State of Madhya Pradesh and Others

R.J. Bhave, J.

By this petition under Articles 226 and 227 of the Constitution, the Petitioner seeks a writ of certiorari for quashing the order of assessment dated 23rd April 1960 (Annexure B), passed by the Sales Tax Officer, Chhindwara, as also the appellate orders dated 10th December I960 and 30th November 1961-passed by the Appellate Assistant Commissioner and the Board of Revenue respectively. The Petitioner also seeks a writ of mande-mus restraining the State of Madhya Pradesh and its officers from continuing the recovery proceedings initiated against the Petitioner on the basis of the order of assessment.

The Petitioner holds mineral concessions for extracting manganese ore in Balaghat and Chhindwara Districts of the present State of Madhya Pradesh and Bhandara and Nagpur Districts of the State of Maharashtra. All these districts formed part of the then State of Madhya Pradesh before the reorganization of States. Though the sales of the manganese ore effected by the Petitioner exceeded the limit prescribed tinder the C.P. and Berar Sales Tax Act, 1947, which was operative during the relevant period, the Petitioner did not get himself registered as a dealer. A number of notices were, therefore, issued by the Sales Tax Officer, Chhindwara, calling upon him to get himself registered and to show cause why he should not be assessed u/s 11 (5) of the C.P. and Berar Sales Tax Act, 1947, and Section 18 (6) of the M.P. General Sales Tax Act, 1958. The Petitioner thereupon applied for being registered as a dealer and was issued the registration certificate by the Sales Tax Officer, Chhindwara, exercising jurisdiction over Balaghat and Chhindwara districts, on 27th December 1960. In the application for registration the Petitioner had stated that his place of business was at Katargjhiri in Balaghat district. After the registration certificate was granted to the Petitioner, the Sales Tax Officer issued a notice to the Petitioner under Sections 17, 18 and 19 of the M.P. General Sales Tax Act, 1958, and proceeded to assess the Petitioner u/s 18 (6) of the said Act for the period 1st October 1953 to 26th December 1958 and determined the turnover at Rs. 10, 42, 153.75 nP. as per the account-books of the Petitioner and determined the tax amount at Rs. 31,580.42 nP. and imposed a penalty of Rs. 5,000. The appeals preferred by the Petitioner were dismissed summarily, as the Petitioner failed to make the necessary deposits as required under the M.P. General Sales Tax Act.

Before we consider the various grounds raised by the Petitioner, an important fact must be noted at this stage, namely, that the assessment was made after the reorganization of States and that during the assessment the Sales Tax Officer included the sales of the manganese ore from the mines situated in Nagpur district from 1st October 1953 to 31st October 1956 and the sales of the ore from the mines situated in Balaghat district were taken into consideration from 1st October 1953 to 26th December 1958, but no separate figures have been given by the Sales Tax Officer and a combined gross turnover has been determined.

The first contention raised on behalf of the Petitioner is that for the period for which the Petitioner has been assessed the C.P. and Berar Sales Tax Act, 1947, was in force, and no action could be taken against the Petitioner under the M.P. General Sales Tax Act, 1958. It is no doubt true that initial notices were issued to the Petitioner under the C.P. and Berar Sales Tax Act. But the ultimate notice was issued under the M.P. General Sales Tax Act and the assessment order also indicates that the action was purported to be taken under the said Act. Even so, in our opinion, the assessment is not rendered invalid on this ground. Section 52 of the M.P. General Sales Tax Act provides that the repeal of the C.P. and Berar Sales Tax Act, 1947, shall not affect the previous operation of the said Act or any right, title, obligation or liability already acquired, accrued or incurred there-under, and subject thereto, anything done or any action taken in the exercise of any power conferred by or under.the said Act, in so far as it is not inconsistent with the provisions of this Act shall be deemed to have been done or taken in the exercise of the powers conferred under this Act. It is not disputed before us that action u/s 11 (5) of the C.P. and Berar Sales Tax Act, 1947, could have been initiated against the Petitioner and that the notice was issued within the limitation prescribed by that Act. The mere wrong mention of the provisions of law would not render the assessment proceedings invalid.

It was then urged that after the reorganization of States the Sales Tax Officer, Balaghat, had no jurisdiction to assess the sales effected from the mines in the Nagpur and Bhandara districts which no longer formed part of the State of Madhya Pradesh; and as no separate turnover was determined for the various areas, the whole order of assessment must be quashed. Shri Dharmadhikari, Learned Counsel for the Petitioner, referred to Section 78 of the States Re-organization Act, 1956, and urged that under that provision only the arrears can be recovered by the successor-State in whose territory the place of assessment of that tax is included. As the Petitioner was not registered as a dealer before the States Re-organization Act came into force, the place shown in the registration certificate, namely, Katangjhiri in Balaghat district, would be the place of business of the Petitioner vis-a-vis the area included in the new State of Madhya Pradesh and it can have no relation to the business which the Petitioner carried on at Bhandara and Nagpur districts before the registration certificate was granted and before the States Re-organization. Shri Dharmadhikari, therefore, urged that the Sales Tax Officer, Balaghat, had no jurisdiction to assess the sales effected from the mines at Nagpur and Bhandara districts.

Section 78 of the States Reorganization Act reads:

Arrears of taxes -The right to recover arrears of any tax or duty on property, including arrears of land revenue, shall belong to the successor-State in which the property is situated, and the right to recover arrears of any other tax or duty shall belong to the successor-State in whose territories the place of assessment of that tax or duty is included.

Shri Sen, learned Advocate-General, appearing for the State, urged that the expression "right to recover arrears of any other tax or duty" covers not only the taxes which have already been assessed but also all those taxes which became due but remained to be assessed. He pointed out that the words "tax or duty" are clubbed together. In the case of a tax, it may be stated that it does not become an arrear so long as the assessment is not made; but, so far as the duty is concerned, it becomes payable on the happening of a certain event, as for instance, the manufacture of goods etc He, therefore, urged that the expression ''arrears'' also refers to the taxes that became due but were yet to be assessed. We are not inclined to accept this contention. Before the assessment proceedings are completed and the final amount due is determined, it cannot be said that any particular amount of tax is due against the Assessee. So long as there is no such determination and no demand for payment of the tax is raised, it cannot be said that the Assessee is in arrears of any taxes. This is so even where the Assessee is required to pay the tax amount as per his own determination along with the returns submitted by him.

Apart from this, Section 78 of the States Reorganization Act clearly indicates that the place of assessment of the tax or the duty must be a place which is included in the territories of the successor-State. So long as the Petitioner was not registered as a dealer with reference to any particular place of business, it cannot be said that Katangjhiri in Balaghat district was the place of business with respect to the ore extracted from the mines in Nagpur and Bhandara districts. The registration certificate granted to the Petitioner in 1958, after the States'' re-organization, wherein the place of business is shown at Katangjhiri, cannot be made use of, as that certificate obviously can have no relation to Nagpur and Bhandara districts which were not within the State of Madhya Pradesh on that date. In this view of the matter also, the Sales Tax Officer, Balaghat had no jurisdiction to assess the tax with respect to the sales effected from the mines in Nagpur and Bhandara districts.

It cannot be disputed that the assessment order is a composite order. In view of the decision of the Supreme Court in Ram Narain Sons Ltd. Vs. Asst. Commissioner of Sales Tax and Others, the present assessment order cannot be upheld and must be quashed. Their Lordships of the Supreme Court, in that case, held:

There is authority for the proposition that when an assessment consists of a single undivided sum in respect of the totality of the property treated as assessable, the wrongful inclusion in it of certain items of property which by virtue of a provision of law were expressly exempted from taxation renders the assessment invalid in toto. The Privy Council have observed in Sennet and While (Calgary) Ltd. and Municipal District of Sagar City No. 5 1951 AC 786 at p. 816:

When an assessment is not for an entire sum, but for separate sums, dissected and earmarked each of them to a separate assessable item, a court can sever the items and out out one or more along with the sum attributed to it, while affirming the residue. But where the assessment consists of a single undivided sum in respect of the totality of property treated as assessable, and when one component (not dismissible as ''de minimis'') is on any view not assessable and wrongly included, it would seem clear that such a procedure is barred, and the assessment is bad wholly. That matter is covered by authority. In Montreal Light, Heat and Power Consolidated v. City of Westmount (1926) SCR (Can.) 515 the Court (see especially per Anglin, C.J.) in these conditions held that an assessment which was bad in part was infected throughout, and treated it as invalid. Here their Lordships are of opinion, by parity of reasoning, that the assessment was invalid in toto''. [P. 497]

For the aforesaid reasons, we allow this petition and quash the assessment order dated 23rd April 1960 as well as the appellate orders. The quashing of the orders will not, in any way, prevent the Sales Tax Authorities from assessing the Petitioner afresh for the sales effected by him from the mines situated in Balaghat and Chhindwara districts on the basis of the notices already issued. The Petitioner shall get costs of this petition from the Respondents. Hearing fee is fixed at Rs. 150. The outstanding amount of the security deposit shall be refunded to the Petitioner.