A dealer who defaults in the payment of tax under the Central Act becomes liable to the penalty under the Mysore Act.

( 1 ) THE petitioners in this revision petition were the respondents in C. M. C. No. 44 of 1962 in the court of the Second Magistrate, Kolar. In that case, viz. , C. M. C. No. 44 of 1962, the petitioner was the Commercial Tax Officer, Kolar. The petition which had been filed by him was under section 13 (3) (b) of the Mysore Sales Tax Act, 1957 (hereinafter referred to as the Mysore Act ). The prayer was for the recovery of a certain sum due as tax under the Central Sales Tax Act, 1956 (hereinafter referred to as the Central Act) in the petition; a sum of Rs. 126-01 was also sought to be recovered as penalty due under section 13 (2) of the Mysore Act. The Magistrate overruled certain objections which had been raised by the respondents and ordered the issue of a warrant for the attachment of the moveables of the respondents. The present revision petition is directed against the said order made by the learned Magistrate.

( 2 ) IN an earlier petition filed by the Commercial Tax Officer, viz. , C. C. No. 487 of 1962, it had been attempted to prosecute the respondents under section 29 (1) (d) of the Mysore Act for the non-payment of this tax amount. The learned Magistrate took the view that for the non-payment of the tax under the Central Act, the defaulter could not be prosecuted under section 29 (1) (d) of the Mysore Act, and acquitted the respondents. In the subsequent petition, viz. , C. M. C. No. 44 of 1962, an object was raised on the ground that section 403 of the Criminal Procedure Code was a bar to the proceedings sought to be taken in C. M. C. No. 44 of 1962. The learned Magistrate held that as the respondents in C. M. C. No. 44 of 1962 were not being prosecuted for any offence, section 403 of the Criminal Procedure Code was not applicable. But the learned Magistrate took the view that by virtue of section 9 (3) of the Central Act, the Sales Tax Officer could seek the help of the Court under section 13 (3) (b) of the Mysore Act for the collection of the tax due under the Central Act; therefore, he ordered the issue of the warrant for attachment of the moveables of the respondents.

( 3 ) SRI K. Srinivasan has appeared for the petitioners and Sri D. M. Chandrasekhar, the High court Government Pleader, has appeared for the respondent Commercial Tax Officer.

( 4 ) THE correctness of the proposition that by virtue of section 9 (3) of the Central Act, the commercial Tax Officer can collect the tax (as distinct from penalty) due under the Central Act, by resorting to section 13 (3) (b) of the Mysore Act, has not been seriously disputed by the learned Advocate for the petitioners. The two contentions which have been advanced in this revision petition are the following : Firstly, that the learned Magistrate ought not to have entertained the petition in C. M. C. No. 44 of 1962, because the same prayer had been made in the previous petition in C. C. No. 487 of 1962 and had not been granted by the Magistrate; it is urged that by granting the relief prayed for in C. M. C. No. 44 of 1962, the Magistrate has practically reviewed the previous order in C. C. No. 487 of 1962 which he was not entitled to do. Secondly, that the respondents would not be legally liable to pay any amount claimed as penalty under section 13 (2) of the Mysore Act; it is urged that the person who defaults in the payment of the tax due under the Central Act, is not under any liability to pay the penalty incurred under section 13 (2) of the Mysore Act.

( 5 ) BY way of answer to the above two contentions, the arguments of the learned High Court government Pleader is firstly, that the prayer which had been made in C. C. No. 487 of 1962 for proceedings being taken under section 13 (3) (b) of the Mysore Act had not been refused or even considered in that case, and that, therefore there was no impediment to that prayer being subsequently granted in C. M. C. No. 44 of 1962; and secondly, that by reason of section 9 (3) of the Central Act, any person th