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Judgment
Govinda Bhat, J.—The petitioner is a firm which is assessed to tax under the Mysore Sales Tax Act, 1957, hereinafter called the Act. For the period 1st July, 1963, to 30th June, 1964, an assessment order was made on the petitioner u/s 12-A of the Act, by the Deputy Commissioner of Commercial Taxes, Bangalore City Division, on 25th March, 1966. The tax assessed on the escaped turnover was determined as Rs. 2,510.36 based on the order of the Deputy Commissioner. The petitioner having failed to pay the said amount of tax demanded, an application was filed before the City Magistrate, Bangalore (respondent 2) u/s 13(3)(b) of the Act in C. Mis. 254 of 1966. The second respondent issued a warrant of attachment of the properties of the petitioner for recovery of the aforesaid tax amount. At that stage, the petitioner has approached this court for relief under article 226 of the Constitution of India.
During the pendency of the above writ petition section 12-A of the Act was amended by Mysore Act 9 of 1970 and the amendment is to have retrospective effect. Section 9 of the Amendment Act states that section 12-A (as now amended) shall be and shall always be deemed to have been inserted. The effect of the said amendment is that section 12-A as it now stands shall be deemed to have been in the Act at all times. u/s 12-A as it stood when the Deputy Commissioner made the order of assessment on 25th March, 1966, he was competent to make the order though he was not the assessing authority. But, u/s 12-A as it now stands, the assessment of escaped turnover can be made only by the assessing authority. The Deputy Commissioner is not empowered to make an order of assessment of escaped turnover.
In view of the amendment aforesaid, Sri K. Srinivasan, learned counsel for the petitioner, has sought our leave to urge the ground that section 12-A as it now stands, by fiction of law, shall be deemed to have been in existence on 25th March, 1966, when the Deputy Commissioner made the order and that the Deputy Commissioner not being empowered to make the order, the assessment order is one which should be deemed to be without jurisdiction, and, consequently, the first respondent is not entitled to recover the amount u/s 13(3)(b) of the Act. We granted the leave prayed for in the circumstances of the case. The learned counsel did not press the grounds which he has raised in the affidavit filed in support of the writ petition and he has confined his arguments to the new ground which he has now raised.
The learned High Court Government Pleader has not brought to our notice any provision of law which saves the assessment orders made u/s 12-A before it was amended by Act 9 of 1970. In view of the fiction introduced by section 9 of the amending Act, we have to hold that section 12-A as it now stands was in existence at all material times, and, that being so, the Deputy Commissioner had no jurisdiction to make the assessment order dated 25th March, 1966, on the escaped turnover of the petitioner and levy tax. Therefore, the levy of tax demanded is one without jurisdiction. Article 265 of the Constitution states that no tax shall be levied or collected except by authority of law. In the instant case, the tax is not levied by authority of law. Therefore, the first respondent is not entitled to recover the amount demanded from the petitioner.
For the reasons stated above, we allow this writ petition and issue a direction to the first respondent to forbear from enforcing the recovery of the tax amount demanded pursuant to the order of the Deputy Commissioner dated 25th March, 1966.
No costs.
Petition allowed.