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C. Kunhikannan Nair Vs. State of Kerala

LegalCrystal Citation : legalcrystal.com/723009

Court : Kerala

Decided On : Feb-10-1971

Reported in : [1971]28STC480(Ker)

Judge : M.U. Isaac, J.

Appeal No. : O.P. No. 3427 of 1969

Appellant : C. Kunhikannan Nair

Respondent : State of Kerala

Advocate for Def. : Government Pleader

Advocate for Pet/Ap. : V. Bhaskaran Nambiar,; C.R. Natarajan and; M.K. Ananthak

Disposition : Petition allowed

Judgement :

M.U. Isaac, J.

1. The petitioner is a dealer at Tellicherry. His shop and godown were searched by the
second respondent, the Intelligence Officer, Agricultural Income-tax and Sales Tax,
Cannanore, on 28th March, 1969. He found that certain articles which were in the
shop and the godown had not been entered in the accounts of the petitioner. Notice
was issued to the petitioner to show cause why action should not be taken against
him under Section 28(4) of the Kerala General Sales Tax Act, 1963. The petitioner
submitted his explanation, exhibit P-4 dated 3rd April, 1969, stating that all the
articles had been actually entered in his books of account. He also contended that the
search and seizure were illegal, and that Section 28(4) of the Act was
unconstitutional in the light of the decision of the Supreme Court in Commissioner of
Commercial Taxes v. R.S. Jhaver A.I.R. 1968 S.C. 59. In the meanwhile the goods
seized by the second respondent were released to the petitioner on furnishing cash
security for a sum of Rs. 1,269. The second respondent did not take any further
action for some time. The petitioner therefore requested the second respondent by
letter, exhibit P-5 dated 7th June, 1969, for the matter being disposed of without
further delay. Thereupon the second respondent passed an order, exhibit P-6 dated
17th June, 1969, overruling the petitioner's objection and levying on the petitioner a
penalty of Rs. 1,269 in respect of the alleged unaccounted goods found with the
petitioner. This writ petition has been filed to quash exhibit P-6.

2. Counsel for the petitioner contends that Section 28(4) of the Act is
unconstitutional, in the light of the aforesaid decision of the Supreme Court. That
decision was concerned with the validity of Section 41(4) of the Madras General Sales
Tax Act, 1959. Though there is some difference between the language employed in
the Madras Statute and the Kerala Statute, the purport and effect of both the sections
are the same. That decision applies to the instant case. It follows that Section 28(4) of
the Kerala General Sales Tax Act, 1963, is unconstitutional, as it is beyond the
legislative powers of the State to enact the same. The same view has been taken by
the Rajasthan High Court in Hiralal Chhaganlal v. State A.I.R. 1968 Raj. 188, in
respect of Section 22(6) of the Rajasthan Sales Tax Act, 1954, which corresponds to
Section 41(4) of the Madras Act and Section 28(4) of the Kerala Act.

3. In the result, I quash exhibit P-6 and direct the respondents to refund to the
petitioner within one month from the date hereof the sum of Rs. 1,269 which has
been recovered from him by way of cash security. In the circumstances of the case
there will be no order as to costs.

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