JAGANNATH PRASAD versus THE STATE OF UTTAR PRADESH

\)'_· KAPUR, J.-The appellants are father and son earring on business in vegetable ghee at -Aligarh .. They along with l{omesh, the second son of appellant Jagannath - Prasad .-were prosecuted under s. 14 (d) of the U. P. Sales Tax Act, 1948 (U.P. 15 of 1948) hereinafter called the •Act' and under s. 471 read with s. 468 _ands. 417 of the Indian Penal Code. They wer_e all acquitted of the charge under· s. 468. Jagannath Prasad was convicted under · ss. 4 71 and 417 of the Indfan Penal Code and s,-14. (d) of the Act and was.sentenced to two years' rigorous imprisonment under s. 47 J, to one years' rigorous imprisonment - and a fine of ·Rs. 1,000/· under s. 417 and to a fine- of Rs. 1,000 under s. 14 (d) of the Act. Bhagwan Das was convicted_ under s. 14 ( d) ·of the Act and sentenced. to a fine of Rs. _ 1, 000/-_ • Ramesh ·was acquitted . . The sentences passed on Jagannath Prasad were concurrent. . Their appeal to the Sessions Judge was dismissed and in revision to the High Court J agannath l'rasad · was acquitted of the offence under s. 417 of the Indian Penal Code but tle other convictions and sentences were upheld. . · _ Against this_ judgment and order of the ~Iigh Court . · of Allahabad the· appellants have_ come to this court by special leave. ·

p. 852

The facts leading to' the appeal are these: In 1950-51, the firm ·of the appellants purchased vegetable -ghee valued at about Rs. 3 lacs from

p. 852

places• outside the State of U. P. in -the name of · four fictitious firm. The firm made its return for that year to the Sales Tax Offic,.r Aligarh and did not include the sale proceeds of these transactions on the ground that they bad purchased them from these four firms who were supposed to be carrying on business in Hathras, Aligarh, and other places in U. P~ By thus not including the proceeds of the sales of these transactions the firm evaded payment of sales .tax for that year on· thoRe transactions. The return of sales tax made by the firm was accepted by the 8ales Tax Officer with the consequence that the sale of goods covered by those. transactions was not taxed. A complaint was made against the ~es Tax Officer in regard to these transactions; an enquiry was held with the result that the ·appellants and ltomesh were µrosecuted and nonvicted as above stated. In the High Court there was no controversy about the facts i. e. the finding of the courts below that the appellants' firm purchased vegetable ghee from outside U. P. and did not show the sale proceeds of the sale of those goods on the ground that they had been purchased from inside· the 8tate of CJ. P. when in reality they had been purchased from outside the State, that the.statements made by the appellant Jagannath Prasad before the 'Sales Tax Officer were false and that the bills produced by him before the Sales 'fax Officer were forged. The conviction was challenged. on grounds of le.w alone.

pp. 852–853

Before us five points were raised: (1} that no sales tax was exigible on these transactions under s. 3A of the Act in 1950-5 l and liability arose by the amendment of the Act in 1952. which gave retroactive operation to the section and became applicable to sales Di dispute and therefore there could be no prosecution under an ex poat facto amendment; (2) the trial of the appellants was illegal because of want of complaint by the Sales Tax Officer under s. 195 of the IJ'riminal Procedure Code; (3) there was no offence under s. 14 ( d) of the Act; (4) forged invoices were produced by appellant Jagannath Prasad because they were called for by the Sales Tax Officer and therefore it cannot be said that they were used by the appellaDt and (5) tha Sales Tax Officer having accepted the invoices as genuine no prosecution could be entertained in regard to those invoices.

pp. 853–854

Now the appel)ants · cannot be pr;secutecl .on the basis of any f'm~ndme,nt subsequent to the date of the allege"d qffence committ~d by tbem. Both parties are, agreed on th.at and therefore we have t.o see the Act as it stood on. the date whcll the offence is alleged to have been committe,d. Accor'ding ,to th~ qharge the offence was C•Jmmitted on or about July ,l~, 1~51, when forged ·invo· ices produced by' the appellants before the :'ales Tax Officer. Sp what we have to se(! is the law as it stood on th.at d,ay. Section 3 of the Act deals with liability ·to tax under tb.e Act and s. 3A with single poin~ taxatiqn. Upder s. 3 every dealer was reguired to.pay on.his turnover of each assessment year a tax at \h~ rat!) of three pies a i;.upee. Thus the tax was pay{i.ble 'in regard tp all sales but under s. 3~ ( i) the -~if '}'.as le.viable only .at a single point. ~fat section provided, S. 3A (1) "Noh;ithstanding .anything con· tained in section 3, the ~tate Government

p. 854

1b'ay, by' notification in 'tho 'officiafGazo- - , ·tte, dec!!\'6 that the turnover in respect of any goods or class of goods shall not b,e liable ;to tax except at such single point Jn the seril'lll .of sales by successive

p. 854

dealers. as may be prescribed".

p. 854

The Government could declare the ta~ to be payable at a.sing"Ie point but there were two require· mei;its; there had to be.'a potifioation in the Official · Gazette d~elaring the pomt ~t which the tax was payab)e and in the series 'ob.ales by successive dealers it had tO pe "as niay be prescribed" i. e. as m~y be prescribed by rµIes. Section 3A was. amended in 1952 with retrospec~ive effeyot bu~ retroactiv"e provision is not applicable to the present proceedings. Under s. 3A a n9tification No. 1 (3) was issued on June 8, 1948, declaring that the proceeds of sales of vegetable ghee imported from outside shall not be included in the turnover of the dealer other than the importer himself. The effect of the notification thus was that if a dealer imported vegetable ghee from outside U. P. and sold it he was requ· ired to include the sale proceeds in his turnover but the other dealers who bought vegetable ghee from the importer. in U. P. and sold it were not so required. The appellants having thus imported the vegetable ghee :Crom outside U. P. were required by the notification to include the proceeds in their turnover and it was to a.void t!iis that they falsely produoed forged invoices that they had purchased th vegetable ghee from those fictitious dealers within the State of U. P. and thus if the notifica· tion was an effective notification the appellants successfully evaded the payment of sales tax which under the law th9y were required to pay. But it was agreed that the notification was ineffective in view of the words "as may be prescribed" because that could only be done by rules and no rules had been made uudcr s. 3A which ·made everv dealer liable to sales tax if ho was an importer from outside U. l'. To this extent the contention of the appellants fa well founded and therefore under s. 3A merely by no~ification the Government could not prescribe a single point taxation as was done by the notification but that does not help the a.pp· .ellants very muc'l. Under s. 3 everv dealer was liable to pay sales tax on every transaction and e. 3A 011ly gave relief in rogard to sales at every point and thus prevented multi-point taxation. If the notification under s. 3A was ineffective, as indeed it was, the appellants were required to pay tax on all their sales and in order to escape multi· point taxa.~ion ·they took advantage of an ineffect.ive notification anti tried the false plea of the goods havhg been imported by fictitbus persons and their having purchased those goods from those ficti~ioue dealers and in tliis manner the appellants escape payment of sales tax under s. 3. In other words they tried to take advantage of s. 3A by producing false documents and thereby evaded payment of tax under s. 3 which every dealer was required to pay on hie turnover. In trying to get the benefit under the ineffective notification issued under s. 3A the appellants evaded payment of tax under s. 3 which they were in any case liable to pay. It cannot be said therefore that no offence was committed under s. U (d) of the Act which provides:- Section 14. "Offences end penalties.-Any person wh0-- (a) (h)

pp. 854–856

............... (c) ••.....•.•••..• ( d) fraudulently evadeR the payment of

p. 856

any tax due under this Act, shall, without prejudice to this liability under any other law for the time being in force. on conviction by a l'lfaj!istrate of the first class, he liable to a fine whioh mav extend to one thousand rupees, and where the breach is a continuing breach, to a further fine whioh may extrnd to fifty rupees for every day after thEl first during which the breach continues".

p. 856

It is no defence to say that the appellants were asked by the Sales Tax Officer to produce invoices. The appellants were trying to flet exclusion from their turnover of the sale of goods worth a.bout a la.Ce and had made statements before the ~a.Jes Ta.x Officer in regard to it on July 9, 195), and in order to prove that the goods were not required to be included in the turnover the invoices were produced by appellant Ja~annath Prasad. When a fact ha~ to be proved before a court or a tribunal and the court or the tribunal calls upon the person who is relyin~ upon a fact to prove it by best evidence it can not be a defence as to the offence of forl."ery if th at best evidence which, in this case, was the in:voices turn out to be forged documents. A person who . produced those documents cannot be heard to say that he was required to prove his case by the best evidence and because· be was so required be produced forged documents.

pp. 856–857

It was then submitted that the Sales Tax Officer was a court within s. 195 of the Criminal Pro.cedure Code and in the absence of a complaint in writing by such an officer no cognizance could be taken of any offence punishable under s. 471 of the Indian Penal Code. Thi@, in our opinion, is an eqmdly erroneous submission. The Sales Tax Officers are the instrumentalities of the State for collect,ion of certain taxes. Under the Act and the Rutes ·made thereunder certain officers are appointed as Sales Tax Officers who · have certain duties assigned to them for the imposition and coilect.ion of taxes and in the proceBB they have to perform many duties which are of a quasi· judicial nature aud certain . other duties which are a<lmini8trative duties. Merely because certain instrnmentaliti:is of state employed for the purpose of taxation hav~, in the discharge of their duties, to perform certain quasi-jndicial functions they are not converted into courts thereby. In a recent judgment of this Court in· Shrimati Ujjam Bai v. The Suite of U.P. (1 ), all the opinions were unanimous on this point that taxing authorities are not courts eveu though they perform quasi-judicial functions. The following observation of Lord flankey L. C. in Skell Oo. of Australia Ltd. v. Fe.deral Oommiaaioner of Taxatian (')was quoted with approval :- "The authorities are clE>ar to show that there are tribunal& with many of the trappings of a court which, nevertheleBB are not oourts in

pp. 857–858

the striot sense of exercising judicial power''. Lord Sankey also enumerated some negative propositions as to when a tribunal is not a court. At p. 297 his lordship said :- "In that oonneotion it may be useful to enumerate 1ome negative propositions on this eubjeot : I. A tribunal is not neoessarily a Court in this strict sense b~oa.use it gives a final decision. 2. Nor beoii.use it hears witneBSes on oath. 3. Nor because two or more contending parties appeRr before it between whom it has to decide. 4. Nor because it gives d~oieions which affect the rights of subj11cts. 5. Nor because there is an appeal to a Court. 6. Nor beca.use it is a body to whiob a matter is referred by another body. See Rex v. Electricity

p. 858

Oommissionera (1924) 1K.B.171". Hidayatullah J, in Shrimati Ujjam Bhai(') oase described Sales tax authorities thus :-

p. 858

"The taxing authorities are instrumentalities of the State. They are not a part of the legislature, nor are they a part of the judiciary. Their functions are the assessment and oollection of taxes aud in tho. process of aesessing taxes, they follow a pa.ti ern of action whioh is considered Judioiat They are not thereby converted into Courte of Civil judioatore. They still l1~. remain the instrumentalities of the State and are within the definition of "State" in

pp. 858–859

Art. 12''. No doubt the Sales Tax Officers have certain powers which are similar to the powers exercised by courts but still they are no! courts as under· stood in s. 195 of the Criminal Procedure Code. In sub-secti~n 2 ofs. 195 it is provided :- S. 195(2) "In clauses (b) and (c) of sub-section (1)

p. 859

the term "Court" includes a ·Civil, Revenue or Criminal Court, but does not include a Registrar or Sub-· · Registrar under the Indian Registration Aot, 1877". • · · ·

p. 859

., It cannot be said that a Sales Tax Officer is a Revenue Court. UndJr s. 2(a) of the Aot an assessing authority is defined to mean any person authol"ised by· the ~tate Government to make assessment under the Act and under R. · 2(h) a Sales Tax Officer means :- "Sales Tax Officer" means a Sales Tax Office~ of a circle appointed by the !:)tate Gov!lrnment to perform the duties and exercise the powers

p. 859

of an assessing authority in ~uch circle" . Thus under the Act a Sales Tax Officer is only an assessing authority. Under s. 7 of the Act, if the Sa.Jes Tax Officer, after, making such enquiries as he thinks necessary, is satisfied th&t a return made is correct and complete, he shall assess the tax on the basis thereof and if no return is submitted he can make such enquiries as he considers necessary and then. determine the turnover of a dealer. ·Thus his determination depends upon enquiries he may make and which he may consider necessary. Sections 9, 10 and 11 of the Act deal with Appeals, Revisions and Statement of the CBSe to the High Court. Under s. 13 power is given to a Sales Tax Officer to require the production of all accounts, documentR and other information relating to business and a1Jcounts and registers shall be open to inspection of the Sales Officer at all reasonable times. He has the power to enter any office, shop, godown, vehicle or other place in which business is done which is power destructive of the Sales Tax Officer being a Court which is a place where justice is ministered as between thti parties whether parties are private persons or one of the parties is the State. V nder s. 23 certain secrecy is attached to documents filed before the Sales Officer and information received by him. Similarly under &. 43 certain p.lwer is given to Sales T.ax Officer to calculate turnover when goods are sold for consideration other than money this is after such enquiry as he considers nece1111&ry. All these provisions show that the Sales Officer cannot be equated with a Court. In opinion therefore the Sales Tax Officer is not Court. In Krishna v. Goverdhansiah{'), it was held that the Income Tax Officer is not a court within the meaning of s. 195 of the Criminal Procedure Code and this view was accepted by this court in Shrimati Ujjam Bai's(') case. In Brajoondan Sinha v. Jyoti Narain('), a Commissioner appointed under the Public Enquiries Act 1950 was held to be a court. Shell Co. of Australia v, Federal Commiasioner of Taxation (') was referred to in case. At p. 967 the following passa.ge Halsbury's Laws of England, Hailsham Edition, Vol. 8, p. 526 was approved:- "Many bodies are not courts, although have to decide questions, and in so doing have to aot i"udioially, in the sense that

pp. 859–860

proceedings must be conducted with fairnll88 csi s.c.a. s.c.:a.

pp. 860–861, margin A

and impartiality, suoh as assessment committees, guardian committees, the Court of referee constituted under tht' Un· . employment Insurance Acts to decide claims made on the Insurance funds, the benchers of the Inns of Courts when considering tht1 conduct of one of their members, the General Medical Council when considering questions affecting the position of a medical man".

p. 861

That passage is now contained in Vol. 9 of the 3rd Edition at p. 343.

p. 861, margin A

But it was submitted that the Sales Tax Qffi. cer while acting as an assessing authority is a court within the meaning of s. 195. (2) of the Criminal Procedure Code because by the amendment of 1923 t.he definition of the word "court" was enlarged by substituting the word "includes'' in place of the · word "means" and the section now reads as has been set out above. Undoubtedly by this change the legislature did mean to make the definition of the word "court" wider but that does not enlarge the definition of the words "Revenue Court". The track of decision which was pressed on our attention is based primarily on a full bench judgment of the Bombay High Court in In re Punemchand Maneklal(I). In that case an Income-tax Collector was held to be a Revenue Court within thl,l meaning of the word

p. 861, margin A

as used ins. 195. The learned Chief Justice who • gave the judgment of the court. proceeded on the basis that inquiries conducted according to the Forms of judicial procedure under Chapter IV of the Incometax Act were proceedings in a Revenue Court. This was on the ground that under the law as it then stood revenue questions were generally removed from the cognizance of civil courts and the officers charged with the duty of deciding disputed question relating to revenue between an individual and the {\) (191l) 1.L.R. 38, Bom.

p. 861, margin A

Government would be invested with the functions of & "Revenue Court". This view w&e followed by the Bombay High Court in State v. N emolw.n<l Pashvir Pate! ( After referring to the va.rious powers which were given to the Sa.Jes Tax Officers urider the Bombay Salee Tax Aot that Court proceeded to sa.y that the Salee Tax Officers under the Bombay Sale11 Tax Act were Revenue Courts because they hlld juriediotion to decide questions relating to revenue, are exclusively empowered with the powers which are normally attributes of a court or & tribunal land &re authorised to adjudicate upon a disputed quee· tion of law or fa.ot relating to the rights of the citizens. The Madras High Court in In re R. Nat.araja Iyer held that a Divisional Officer hearing appeals under the Income tax Act was & oourt within the meaning of e. 4 76 of the Criminal Procedure Code but a Tehsildar who was the original &Reessing &U· thority was not because there was no lis before him. There is one passa.ge in the judgment of Sundara Ayyar J., whioh is of significance. It was said :-

p. 862

"I may observe that I am prepared tO agree with Dr. Swaminathan that more author· ity to receive evidence would not make the officer recording it a Court"

p. 862

At page 84, it was said that the determination of the aseesement in the first instance may not be of a court although the asseseing officer may have the power to reoord statements. But an appeal • against the aseeBBment is dealt with by the Collector in the manner in which an appeal i1 disposed of by a Civil Court. In this connection referenoe may be made to the statement of the law contained in the judgment of Venkatarama Ayyar J., in Shri Virinder Kumar Sa!yawadi v. The Swt,e of Punjab('). There the distinction between a quasi-judicial tribunal and a court was given as follows :-

pp. 862–863

"It may bestated broadly that what distinguished a Court from a quasi-judicial tribunal is tliat it is charged with a duty to decide disputes in a judicial manner and declare the rights of parties in a definitive judgment. To decide in a judicial manner involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it. And it also · imports an obligation .on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with When a question therefore arises as to whether an authority created by an Act is a Court as distinguished from a quasi-judi· cial tribunal, what has to be decided is w hether having regard to th3 provisions of the Act it possesses all the attributes of a Court".

p. 863

Dealing with quasi-judicial tribunals it was observed in Gidwpelli Ne,ge,swara Rao v. The State of Andhra Pradesh(l) : -

p. 863

'•The concept of a quasi-judicial act implies that the act is not wholly judicial, it describes only a duty cast on the executive body or authority to conform to the norms of judicial procedure in performing some act in the exercise of its executive power". ·

p. 863

It is not necessary to refer to other cases because they were decidtd on their own facts and related to different tribunals. In our opinion a Sales Tax Officer is not a Court within the meaning of s. l95 of the Criminal Procedure Code and therefore it was not necessary for a dales Tax Officer to.

p. 863

s.c.R. ma.ke a complaint and the proceedings without such a. compl•iint a.re not without jurisdiotion.

pp. 863–864

In our opinion the appellants were rightly convicted and we therefore dismiss this a.ppea.). The appellant J a.ganna.th Prasad must surrender to his bail bonds.

p. 864

Appeal di&misstJJ. JIA LAL

p. 864

v.

p. 864

THE DELHI ADMINISTRATION (B. P. c. J., P. B.

p. 864

K. N. N.

p. 864

and T. L. JJ.) Criminal Trial-Po . .,,.8'ion of ·unliunwl arm8 SanGlion-

p. 864

Randionfor nnt in other af'ell-If discriminatory-Whether offending portion sta.nd-lf im·alidity of p?ovision regarding •anction affectll substantive a/so-Indian Arm. Act, 1878 (XI of 1878), 19(1)(/), 29-Canstitution of India, Art. U.

p. 864

that

p. 864

Jumna if J

p. 864

and

p. 864

29 and of and

p. 864

29 was his ifs. wa~ a~-

p. 864