JUDGMENT
Rama Jois, J.
1. In this revision petition presented under section 13(4) of the Karnataka Sales Tax Act, 1957 (hereinafter referred to as the State Act), by a partner of a dissolved firm against the order of the Magistrate rejecting his objection for the recovery of tax made on an application under section 13(3) of the State Act, the following two questions of law arise for consideration :
“(1) Whether the proceedings for assessment taken under section 15(2) of the State Act for assessing the sales tax payable by the dissolved firm under the provisions of the Central Sales Tax Act (hereinafter referred to as the Central Act) is valid ?
(2) Whether the limitation for the recovery of fine fixed under section 70, Indian Penal Code, is applicable for the recovery of tax due under the Central Act, because the same is required to be recovered as fine by virtue of section 13(3)(b) of the State Act ?”
2. The brief facts which have given rise to the above questions are as follows : The petitioner was a partner of a firm under the name and style M/s. R. C. Hiremath (Patil). The firm was dealing in timber. It stood dissolved on 1st July, 1963. The assessing authority made an assessment order on 19th March, 1967 (exhibit ‘A’). The assessment order was taken in appeal before the appellate authority. The appellate authority made an order on 13th January, 1970, setting aside the assessment order on the ground that before the dissolution of the firm on 1st July, 1963, there was no provision which empowered the authorities to make an assessment against the dissolved firm. Thereafter the legislature amended the provisions of the State Act by Act No. 9 of 1964. Sub-section (2) was introduced to section 15 specifically providing for making an assessment against a dissolved firm. Section 34 of the said Act validated all the proceedings including assessments made against the dissolved firms. In the case of S. S. Navalgi v. Commercial Tax Officer, Jamkhandi ([1971] 28 S.T.C. 580.), the question of validation of assessments made against the dissolved firms by section 34 of Act 9 of 1964 came up for consideration. This Court held that as section 15(2) was not introduced with retrospective effect, the validation of assessments made against dissolved firms earlier to the introduction of section 15(2), under section 34 of Act 9 of 1964 was invalid. In order to get over the effect of the said judgment, the State Act was further amended by Act 9 of 1970. By the said amendment section 15(2) was given retrospective effect and further, section 24 of the said amending Act provided that all the assessment orders made against dissolved firms earlier shall be valid as having been made under the principal State Act as amended by Act 9 of 1970. In view of this amendment, the appellate authority made another order on 12th August, 1970, setting aside its earlier order dated 13th January, 1970. The result was, the order of assessment made on 19th March, 1967, stood restored.
At this stage it is necessary to state that the Central Act was also amended by Central Sales Tax (Amendment) Act No. 28 of 1969. Section 9(2) of the said Act was given retrospective effect and by the said provision all assessments made against the dissolved firms under the Central Act pursuant to the provision under the Central Act were also validated.
3. Sri B. V. Katageri, the learned counsel appearing for the petitioner, contended that in the absence of the provision in the Central Act providing for making an assessment against a dissolved firm, the order of assessment made against the dissolved firm was without authority of law. In support of his submission he relied on the decision of the Supreme Court in State of Punjab v. Jullundur Vegetables Syndicate . In the said case, the Supreme Court held that in the absence of a provision in the concerned Sales Tax Act no assessment could be made on a dissolved firm. Relying on the said judgment he argued that there was no provision in the Central Sales Tax Act providing for making an assessment against a dissolved firm and, therefore, the assessment order made on 19th March, 1967, was without authority of law. As already stated, though at the relevant point of time when the assessment was made there was no provision in the State Act for making an assessment against a dissolved firm, sub-section (2) of section 15 was introduced into the State Act, specifically providing for making an assessment against a dissolved firm by Act 9 of 1964 and the said section was given retrospective effect by virtue of section 24 of Act No. 9 of 1970 and further, all the orders of assessment made earlier were validated. Section 9 of the Central Act which originally stood had adopted all the provisions of the State law. The question whether subsequent amendments made to the State Act were also applicable in respect of assessment to be made under the Central Act, specifically came up for consideration before a Division Bench of this Court in Mysore Electrical Industries Limited v. Commercial Tax Officer, V Circle, Bangalore ([1971] 27 S.T.C. 559.). This Court held that in view of the definition of the words “sales tax law” and “general sales tax law” in the Central Act, read with section 9 of the State Act (sic) not only the State Act as it stood on the date when section 9 was introduced but future amendments made to the State Act also stand automatically adopted with effect from the date when the amendments are enacted. The same view was followed in A. V. Rajshekarappa v. Commercial Tax Officer, II Circle, Hubli ([1975] 35 S.T.C. 379.). In view of this decision it is clear that the provisions of section 15(2) introduced to the State Act by Act 9 of 1964 as also the subsequent amendment made to the State Act by Act 9 of 1970 were clearly applicable to assessments made under the Central Act. Further, the Central Act itself was also amended by amending Act 28 of 1969 and sub-section (2) of section 9 of the said amending Act validated all orders of assessment made against a dissolved firm. Therefore, the order of the assessing authority made on 19th March, 1967, levying Central sales tax against the dissolved firm became valid by virtue of the subsequent amendments made to the State Act and the Central Act referred to above.
4. The learned counsel appearing for the petitioner however contended that the adoption of the provision of the State Act by virtue of section 9 of the Central Act was only in respect of procedural law and not of substantive provisions. In support of this submission he relied on the decision reported in Guldas Narasappa Thimmiah Oil Mills v. Commercial Tax Officer, Raichur ([1970] 25 S.T.C. 489.). In the said case, this Court held that penalty imposed under sub-section (2) of section 13 of the State Act against a defaulter in the payment of tax is not ipso facto attracted in respect of tax payable under the Central Act as there was no corresponding provision in the Central Act, and in the absence of such a substantive provision for levy of penalty in the Central Act, section 9 of the Central Act adopting the provisions of the State Act for recovery of dues under the Central Act did not authorise the levy and collection of penalty. He also relied on the decision of the Supreme Court in Khemka & Co. (Agencies) Pvt. Ltd. v. State of Maharashtra in which the view taken by this Court in the Guldas Narasappa’s case ([1970] 25 S.T.C. 489.) was approved. We do not see any force in this submission. The provision introduced in the form of sub-section (2) of section 15 of the State Act was only procedural and not substantive. The liability to pay tax under the Central Act arose on account of the charging section under the Central Act. The firm which included the petitioner as partner had become liable to pay the tax. But the firm was dissolved on 1st July, 1963. There was no provision in the State Act or the Central Act prescribing the procedure for making an assessment against a dissolved firm on that day. By a subsequent amendment made with retrospective effect, section 15(2) was introduced and the assessment orders made against a dissolved firm at a point of time when section 15(2) was not in existence were validated as if they had been made after the introduction of sub-section (2) of section 15 with retrospective effect by virtue of section 24 of Act No. 9 of 1970 amending the State Act and section 9 of the Central Sales Tax (Amendment) Act of 1969. In order to substantiate that the procedure for making assessment against a dissolved firm was substantive provision, the learned counsel relied on the decision reported in S. S. Navalgi v. Commercial Tax Officer, Jamkhandi ([1971] 28 S.T.C. 580.) in which section 34 of Act No. 9 of 1964 was held to be invalid on the ground that sub-section (2) of section 15 had not been given retrospective effect and consequently the validation clause was also invalid. He argued that if section 15(2) of the State Act was considered as a procedural provision, there would have been no necessity to give retrospective effect or to introduce a validating provision and this Court struck down the validating section only on the basis that section 15(2) was a substantive provision. In the said decision no such point was raised or decided. Therefore, the said decision cannot be taken as an authority for the proposition that a provision like section 15(2) of the State Act is a substantive provision.
5. Apart from that, the decision of the Supreme Court in the Khemka’s case in which section 9(2) of the Central Act was interpreted and it was held that the said provision did not empower the levy of penalty prescribed under the State law but not under the Central Act, for default in payment of Central sales tax itself indicates that the provisions providing for making assessments or collection of tax or penalty are only procedural. The relevant portion of the judgment reads as follows :
“In that context, the last limb of section 9(2) of the Central Act, viz., ‘and the provisions of such law ……… shall apply accordingly’ mean that the provisions of the State Act are applicable for the purpose of assessment, reassessment, collection and enforcement of payment of tax including penalty payable under the Central Act. The words of the last part of section 9(2), viz., ‘shall apply accordingly’ relate clearly to the words ‘and for this purpose’ with the result that the provisions of the State Act shall apply only for the purpose of assessment, reassessment, collection and enforcement. The doctrine of ejusdem generis shows that the genus in section 9(2) of the Central Act is ‘for this purpose’. In other words, the genus is assessment, reassessment, collection and enforcement of payment. The genus is applicable in regard to the procedure for assessment, reassessment, collection and enforcement of payment. The genus is from whom to collect and against whom to enforce. It is apparent that the extent of liability for tax as well as penalty is not attracted by the doctrine of ejusdem generis in the application of the provisions of the State Act in regard to assessment, reassessment, collection and enforcement of payment of tax including any penalty payable under the Central Act.”
In view of the above observations of the Supreme Court, there is no substance in the submission made for the petitioner that the provision for making an assessment against a dissolved firm is substantive and not procedural.
6. In the light of the above discussion we hold that the order of assessment made on 19th March, 1967, became valid in view of the introduction of section 15(2) to the State Act with retrospective effect and validation made by section 24 of the amending Act of 1970 made to the State Act read with section 9 of the Central Sales Tax (Amendment) Act, 1969.
7. The next question for consideration is whether the limitation prescribed under section 70, Indian Penal Code, for the recovery of fine is attracted to the proceedings for recovery under section 13(3)(b) of the State Act. Section 13(3)(b) of the State Act provides that notwithstanding anything contained in the Code of Criminal Procedure, 1898 (now the Code of Criminal Procedure, 1973), on application to any Magistrate for the recovery to tax due under the Act, he could proceed to recover the said amount as if it were a fine imposed by him. Section 70, I.P.C., prescribes the period of limitation of six years for the recovery of fine imposed under the Penal Code. The argument advanced for the petitioner was that as section 13(3)(b) of the State Act provides that the amount of sales tax recoverable under the State Act could be recovered by a Magistrate as if it were a fine, the period of limitation prescribed under section 70 of the Penal Code was also applicable and as in the present case it was only after more than six years from the date of the order of assessment the application was made before the Magistrate, it was barred by limitation. We are not impressed by the submission. There is no limitation prescribed under the State Act. The amount which is required to be recovered under section 13(3)(b) of the State Act is the amount of tax payable under the Act. The effect of section 13(3)(b) of the State Act is that the concerned Magistrate has to follow the same procedure as prescribed for recovery of fine under sections 421 and 422 of the Criminal Procedure Code to recover the amount of tax. Therefore, the limitation prescribed under section 70 of the Penal Code is not attracted because, the amount which is remaining to be recovered by the Magistrate pursuant to an application made under section 13(3)(b) of the State Act is not a fine levied under the Penal Code but a tax payable under the Act. The learned counsel however wanted to make out a case relying on section 25 of the Karnataka General Clauses Act. The said section provides that sections 63 to 70 of the Penal Code and the provisions of the Criminal Procedure Code for the time being in force, in relation to the issue and execution of warrants for the levy of fines shall apply to all fines imposed under any enactment, rule or by-law, unless the enactment, rule or by-law contains an express provision to the contrary. The said section has no application to the present case as the amount sought to be recovered is not a fine levied under the provisions of the Sales Tax Act. All that section 13(3)(b) of the State Act provides is that the Magistrate should follow the procedure prescribed under the Criminal Procedure Code for the recovery of fine in recovering the tax payable under the Act in respect of an application made before him.
8. The learned counsel appearing for the petitioner however relied on the decision of this Court in Mohanlal Premchand v. Commercial Tax Officer, Bagalkot ([1971] 28 S.T.C. 492.) in which it was held that on an application made under section 13(3)(b) of the State Act, a Magistrate had no authority to recover any amount of sales tax payable under the State Act, which was in excess of the maximum penalty impossible by him under the provisions of the Criminal Procedure Code. In this behalf it is sufficient to point out that section 13(3)(b) of the State Act was amended subsequently by Act No. 7 of 1972 and the following words :
“notwithstanding anything contained in the Code of Criminal Procedure, 1898,”
were introduced at the opening part of the sub-section. In view of the non obstante clause introduced, the learned counsel cannot derive any support from the earlier decision.
9. In the result, we hold that the limit of time prescribed under section 70 of the Indian Penal Code is not attracted to an application under section 13(3)(b) of the State Act. For the reasons aforesaid we make the following order.
10. The revision petition is dismissed. No costs.
11. Petition dismissed.