ORDER [ENTITY], J.
1. The petitioners in this revision petition were the respondents in [CASE NUMBER] in the Court of the Second Magistrate, Kolar. In that case, viz., [CASE NUMBER], the petitioner was the Commercial Tax Officer, Kolar. The petition which had been filed by him was under [SECTION] of the [ACT] (hereinafter referred to as the [ACT]). The prayer was for the recovery of a certain sum due as tax under the [ACT] (hereinafter referred to as the [ACT]) in the petition; a sum of Rs. 126-01 was also sought to be recovered as penalty due under [SECTION] of the [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., [CASE NUMBER], it had been attempted to prosecute the respondents under [SECTION] of the [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 [ACT], the defaulter could not be prosecuted under [SECTION] of the [ACT], and acquitted the respondents. In the subsequent petition, viz., [CASE NUMBER], an object was raised on the ground that [SECTION] of the [ACT] was a bar to the proceedings sought to be taken in [CASE NUMBER]. The learned Magistrate held that as the respondents in [CASE NUMBER] were not being prosecuted for any offence, [SECTION] of the [ACT] was not applicable. But the learned Magistrate took the view that by virtue of [SECTION] of the [ACT], the Sales Tax Officer could seek the help of the Court under [SECTION] of the [ACT] for the collection of the tax due under the [ACT]; therefore, he ordered the issue of the warrant for attachment of the moveables of the respondents.
3. Sri [ENTITY] has appeared for the petitioners and Sri [ENTITY], the High Court Government Pleader, has appeared for the respondent Commercial Tax Officer.
4. The correctness of the proposition that by virtue of [SECTION] of the [ACT], the Commercial Tax Officer can collect the tax (as distinct from penalty) due under the [ACT], by resorting to [SECTION] of the [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 [CASE NUMBER], because the same prayer had been made in the previous petition in [CASE NUMBER] and had not been granted by the Magistrate; it is urged that by granting the relief prayed for in [CASE NUMBER], the Magistrate has practically reviewed the previous order in [CASE NUMBER] 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] of the [ACT]; it is urged that the person who defaults in the payment of the tax due under the [ACT], is not under any liability to pay the penalty incurred under [SECTION] of the [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 [CASE NUMBER] for proceedings being taken under [SECTION] of the [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 [CASE NUMBER]; and secondly, that by reason of [SECTION] of the [ACT], any person that makes a default in the payment of the tax due under that Act, will become liable to the penalty under [SECTION] of the [ACT].
6. After a careful consideration of the arguments advanced by the learned Advocates, we are satisfied that there is no force in either of the contentions urged by the petitioners. So far as the first contention is concerned, it is seen that though in the earlier petition a prayer had been made for proceedings being taken under [SECTION] of the [ACT], the Magistrate had not at all given any thought to that prayer. Apart from acquitting the accused therein, on the ground that [SECTION] of the [ACT] did not apply to a case of non-payment of the tax due under the [ACT], the learned Magistrate did not at all consider the other relief which had been prayed for under [SECTION] of the [ACT]. When the Magistrate had not at all applied his mind to this latter prayer, it cannot be said that it had been rejected and that it was not therefore open to the Commercial Tax Officer to pray for the same relief in a subsequent petition. When the judicial mind had not been applied to this prayer and the same remained indisposed of, the subsequent petition prayer for the same relief can properly be viewed as a continuation of the previous petition in respect of this prayer. When there was no previous order at all in respect of the prayer under [SECTION] of the [ACT], we do not find any force in the contention that in granting the prayer in [CASE NUMBER], the Magistrate had exercised a power of review.
7. In regard to the second contention, the argument of Sri [ENTITY] is that [SECTION] of the [ACT] provides only for the levy, assessment and collection of the tax under that Act and the penalty under [SECTION] of the [ACT] and the said section does not impose any liability for the payment of the penalty under [SECTION] of the [ACT]. On the other hand, the argument on behalf of the respondent is that under [SECTION] of the [ACT], a dealer who defaults in the payment of the tax under that Act, becomes liable to the penalty provided in [SECTION] of the [ACT]. For a proper consideration of these arguments, it will be necessary to set out the provisions of [SECTION] of the [ACT] and [SECTION] of the [ACT]. [SECTION] of the [ACT] is as follows :
"9. (3) The authorities for the time being empowered to assess, collect and enforce payment of any tax under the [ACT] of the appropriate State shall, on behalf of the Government of India and subject to any rules made under this Act, assess, collect and enforce payment of any tax, including any penalty, payable by a dealer under this Act in the same manner as the tax on the sale or purchase of goods under the [ACT] of the State is assessed, paid and collected; and for this purpose they may exercise all or any of the powers they have under the [ACT] of the State; and the provisions of such law, including provisions relating to returns, appeals, reviews, revisions, references, penalties and compounding of offences, shall apply accordingly :
Provided that if in any State or part thereof there is no [ACT] in force, the Central Government may, by rules made in this behalf, make necessary provision for all or any of the matters specified in this sub-section, and such rules may provide that a breach of any rule shall be punishable with fine which may extend to five hundred rupees; and where the offence is a continuing offence, with a daily fine which may extend to fifty rupees for every day during which the offence continues."
[SECTION] of the [ACT] are as follows :-
"13. Payment and recovery of tax. - (1) The tax under this Act shall be paid in such manner and in such instalments, if any, and within such time, as may be prescribed.
(2) If default is made in making payment in accordance with sub-section (1),
(i) the whole of the amount outstanding on the date of default shall become immediately due and shall be a charge on the properties of the person or persons liable to pay the tax under this Act; and
(ii) the person or persons liable to pay the tax under this Act shall pay a penalty equal to -
(a) one per cent. of the amount of tax remaining unpaid for each month for the first three months, after the expiry of the time prescribed under sub-section (1) and
(b) two and one-half per cent. of such amount for each month subsequent to the first three months as aforesaid.
(3) * * * *."
9. Sub-[SECTION] of the [ACT] states that the tax payable by any dealer under that Act shall be levied and collected by the Government of India in the manner provided in sub-section (3). Sub-section (2) states that the penalty imposed on any dealer under [SECTION] shall be collected by the Government of India in the manner provided in sub-section (3). The authorities for the time being empowered to assess, collect and enforce payment of any tax under the [ACT] of the appropriate State (hereinafter referred to as the authorities) are required by sub-section (3) on behalf of the Government of India and subject to any rules made under the [ACT], to assess, collect and enforce payment of any tax, including any penalty, payable by a dealer under the [ACT]. This assessment, collection and enforcement of payment of the tax under the [ACT] is required to be done in the same manner as the tax under the [ACT] of the State is assessed, paid and collected. What those authorities are required to assess, collect and enforce payment of, is the tax under the [ACT] (including any penalty). For the purpose of so assessing, collecting and enforcing the payment of the tax due under the [ACT], the authorities may exercise all or any of the powers which they have under the [ACT] of the State. The contention of Sri [ENTITY] is that it is only when the authorities exercised or purported to exercise some power which they have under that law, that the provisions of the [ACT] of the State would be applicable, as provided in the last part of [SECTION] of the [ACT]. That is how he seeks to interpret the expression "shall apply accordingly". His further argument is that in a case in which there is no exercise by the authorities of any power under the [ACT] of the State, there would be no ground for the applicability of the provisions of that law. Therefore his contention is that as [SECTION] of the [ACT] does not contain any power which can be exercised by the said authorities, the question of the applicability of that sub-section to a dealer under the [ACT] cannot arise. On the other hand, the argument of Sri [ENTITY] is that in the last part of [SECTION] of the [ACT] the applicability of the provisions of the [ACT] of the State has not been confined only to those case where the authorities have exercised any power under that law. His argument is that subject to any rules made under the [ACT], the provisions of the [ACT] of the State could be applicable for all or any of the purposes mentioned in [SECTION]. On the basis of the meaning given in the Concise Oxford Dictionary to the word "accordingly" both the learned conceal are agreed that the expression shall apply "accordingly" can be understood to mean "shall apply as the stated circumstances suggest". The contention of Sri [ENTITY] is, that the provisions of the [ACT] of the State would be applicable in all the circumstances suggested in [SECTION] and that the applicability cannot be restricted merely to those cases in which some power has been exercised or is exercisable by the authorities. His argument is that the entire process of assessment, payment, collection and recovery of the tax payable by a dealer under the [ACT], is the same as that provided in the [ACT] of the State. According to him, [SECTION] of the [ACT], being part of the law prescribing the manner in which the tax should be paid, that sub-section also would be applicable to the payment and collection of the tax payable by a dealer under the [ACT].
10. It is no doubt true that as pointed out by the Supreme Court in the case of [PRECEDENT], The [PRECEDENT] , taxing statutes must be strictly construed and in case of doubt it must be construed against the taxing authorities and doubt resolved in favour of the taxpayer. The following passage from [PRECEDENT], found in [ENTITY] on Statutory Constructions, has been cited by the Supreme Court :
"Statutes levying taxes or duties upon citizens will not be extended by implication beyond the clear import of the language used, nor will their operation be enlarged so as to embrace matters not specifically pointed out, although standing upon a close analogy, and all questions of doubt will be resolved against the government and in favour of the citizen, and because burdens are not to be imposed beyond what the statute expressly imparts."
11. Sri [ENTITY] does not deny that in interpreting [SECTION] of the [ACT], it will not be open to the Court to make good any deficiency, if there be any. But, his argument is that there is no question of any doubt in the present case and that [SECTION] of the [ACT] clearly makes applicable the provisions of the [ACT] of the State, including those relating to penalties for making effective the payment and the collection of the tax payable under the [ACT]. He relies on the observation made by the Supreme Court in the case of [PRECEDENT] , which is as follows :-
"In interpreting a fiscal statute, the Court cannot proceed to make good deficiencies if there be any : the Court must interpret the statute as it stands and in case of doubt in a manner favourable to the taxpayer. But where, as in the present case, by the use of words capable of comprehensive import, provision is made for imposing liability for penalty upon taxpayers guilty of fraud, gross negligence or contumacious conduct, an assumption that the words were used in a restricted sense so as to defeat the avowed object of the Legislature qua a certain class will not be lightly made".
12. It is further urged by him that this penalty is nothing more than a pecuniary liability which is provided to induce prompt payment within the prescribed time and is incurred only in the event of default in payment within such time, and that therefore is something incidental to the manner of the payment of tax. In this connection, he also pointed out that in case of [PRECEDENT] , the Supreme Court, which was dealing with the question of the imposition of penalty under [SECTION] of the [ACT], was inclined to the view that the imposition of penalty was a necessary concomitant or incident of the process of assessment, levy and collection of tax. The point sought to be made out by Sri [ENTITY] is that the penalty provided for under [SECTION] of the [ACT], is a mere concomitant in the process of the payment and collection of the tax payable under the [ACT].
13. The object of [SECTION] is the effective realisation of the tax payable under the [ACT]. By the time the [ACT] was enacted, there already existed in the different States, sales tax laws containing detailed provisions for the payment and collection of sales tax; there was also an elaborate machinery for enforcing the payment of the sales tax. [SECTION] authorises the utilisation of that existing machinery and the provisions of the sales tax laws of the various States, for the effective realisation of the tax payable under the [ACT]. The word "manner" in [SECTION] cannot be understood as merely meaning "form". It is much more comprehensive and really means the peculiar way a thing is done. What is stated by [SECTION] of the [ACT] is that subject to any rules made under the [ACT], the authorities shall assess and enforce payment of any tax payable under the [ACT], in the same way in which the tax under the [ACT] of the State is assessed, paid and collected, and accordingly the provisions of the [ACT] of the State shall apply. [SECTION] of the [ACT] cannot be read as if it consists of separate parts entirely unrelated to one another. When that sub-section is considered and understood as a whole, it becomes clear that the provisions of the [ACT] of the State including provisions relating to penalties, will be applicable to the entire process of assessment, payment, collection and recovery of the tax payable under the [ACT]; that will be the true effect of the expression "shall apply accordingly".
14. [SECTION] of the [ACT] makes provision in respect of the payment and recovery of tax. Sub-section (1) of that section states that the tax shall be paid in such manner and in such instalments, if any, and within such time, as may be prescribed. Sub-section (2) provides that if default is made in making payment in accordance with sub-section (1), then the person liable to pay the tax shall pay a penalty as specified in clauses (ii)(a) and (b). The provision in sub-section (2) is intended not only to induce prompt payment of the tax, but is also intended to cover all those cases in which there is default in making payment in accordance with sub-section (1). It cannot be said that sub-section (2) provides for something which is unrelated to the manner of payment of the tax. On the other hand, sub-section (2) is so closely related to sub-section (1) that dissociated from sub-section (1), it will be without any purpose or meaning. The liability under sub-section (2) which is incurred in the event of non-compliance with sub-section (1), is incidental to the manner of payment of the tax. Once there is failure to make payment in accordance with sub-section (1), the penalty under sub-section (2) is incurred by the person liable to pay, and thereafter it will be the duty of the tax officers to recover such penalty. When it is required by [SECTION] of the [ACT] that the tax (sic) payable under the [ACT] of the State is paid and collected, it clearly follows that the provision made in [SECTION] of the [ACT] must also be applicable to the payment and collection of the tax under the [ACT], as something which is incidental to and part of the process of such payment and collection. Therefore, a dealer under the [ACT] who defaults in making payment of the tax payable under that Act within such time as may be prescribed becomes liable to pay the penalty provided in [SECTION] of the [ACT], in the same way in which a defaulting dealer under the [ACT] incurs that liability.
15. In urging that there is a distinction between a tax and a penalty, Sri [ENTITY] sought to rely on certain observations made by this High Court in the case of [ENTITY] Arali v. Commissioner of Income-tax in Mysore, Bangalore . In that case, the Court had to consider the legality of the imposition of a penalty under [SECTION] of the repealed [ACT]; the question was whether that [SECTION] was preserved by [SECTION] of the [ACT]. The contention urged in that case was that although for the purpose of levy, assessment and collection of income-tax and super-tax the [ACT] continued to be in force and operative, its provisions in so far as they authorised the imposition of a penalty stood repealed. While agreeing with that contention, the learned Judges as follows :-
"There is, in our opinion, a great distinction between a tax and a penalty. The provisions of the [ACT] are similar to those of the [ACT] and it is clear that just as the scheme of the [ACT] makes a distinction between a tax which may be demanded under the provisions of the Act and a penalty which may be imposed under its provisions, the [ACT] also makes a similar distinction The fact that [SECTION] of the [ACT] refers only to the levy, assessment and collection of income-tax and super-tax and says nothing about penalty, although the [ACT] itself makes a distinction between a tax and a penalty is, in our opinion, almost conclusive of the fact that [SECTION] of the [ACT] did not intend that the provisions of the [ACT] should continue to be operative or in force for the purposes of the imposition of a penalty under its provisions."
16. It is submitted by Sri [ENTITY] that the correctness of the above observations is open to doubt in view of the subsequently reported decision of the Supreme Court in [PRECEDENT] , wherein the Supreme Court regarded the penalty as an additional tax and repelled the argument that the power to impose the penalty under [SECTION] of the [ACT] was not saved by [SECTION] of the [ACT]. It is not necessary in the present case to consider the effect of the said Supreme Court decision on the view taken in [ENTITY]'s case . It is sufficient to point out that the observations above referred to, made in [ENTITY]'s case , cannot in any way be helpful to the petitioner, because of the fact that the question whether the penalty could be regarded either as a concomitant of the tax or whether it could be viewed as being incidental to the manner of payment did not arise in that case for determination. Sri [ENTITY] also cited a decision of the Travancore-Cochin High Court reported in [PRECEDENT], wherein it has been observed at page 459 that the imposition of a penalty cannot be considered to be a mode of recovery of tax. This observation was made while considering the validity (with reference to [SECTION] of the [ACT]) of the imposition of penalty upon penalty. The said observation is in no way useful in the present case, as it is not contended that the penalty under [SECTION] of the [ACT] is a mode of recovery of tax.
17. Sri [ENTITY] expressed a doubt as to whether a dealer whose default in payment of the tax cannot be attributed to contumacious conduct on his part, would become subjected to the penalty under [SECTION]. We do not think that there could be any such doubt. The default in payment of the tax may be due to dishonesty, stubbornness, or mere whimsicality. Whatever be the reason, once the payment is not made in accordance with the requirements of sub-section (1), the liability under sub-section (2) to pay the additional amount (which is designated as a penalty) is incurred. This liability to pay the additional amount by way of penalty, being part of the law governing the payment of the tax is, by virtue of [SECTION] of the [ACT], applicable to a dealer under this Act who fails to pay within the prescribed time, irrespective of whether such default is or is not attributable to contumacious conduct.
18. For the reasons above stated, the contentions urged by the petitioners fail and this revision petition is dismissed.
19. Petition dismissed.