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2014 (7) TMI 320 - HC - VAT and Sales TaxConstitutional validity of Section 4 - Assam General Sales Tax (Amendment) Act, 2002 - Sale of controlled commodities - Portable alcohol/rectified spirit - assessee entered into contract for wholesale supply to excise warehouse - demand of payment of sales tax from the petitioner on account of the sale of the country spirit transported by him - Assessee contends that the contractual assignments undertaken by him in transporting the country spirit did not constitute a sale exigible to sales tax but is only a transportation contract - Revenue contends that assessee has been supplying the country spirit to the retail vendors within the meaning of the charging provisions of the extent sales tax legislation thereby making him liable to pay sales tax irrespective of whether he realizes such taxes from his buyers or not - what is the nature of the transaction which was actually undertaken by the petitioner in supplying the country spirit to the specified warehouses of Assam during the relevant period. Held that:- If a sale, express or implied, is found to exist then the tax must follow. In other words, so long as mutual assent, express or implied, is not totally excluded, the transaction will amount to a sale. In the case at hand, the nature of the contract executed between the petitioner and the Staterespondents plainly shows that the four elements to constitute a sale, namely, competency of parties, mutual assent of the parties even though the same may not be total, passing of property in the goods supplied by the petitioner to the licensed retail vendors via the officer-in-charge of the warehouse/excise and treasury, and lastly, payment of price, though statutorily controlled, were all present to render the transaction liable to sales tax. Explanation 3(ii) to section 8(1)(a) of the Assam General Sales Tax (Amendment) Act, 2002, is intra vires the Constitution and the sales tax imposed thereby cannot be construed to be a tax on income beyond the legislative competence of the State Legislature of Assam. - Decided against the assessee. Jurisdiction of High Court - writ jurisdiction - Held that:- Revenue authorities appointed under section 3 of the Act are also Tribunals or, at any rate, have the trappings of a Tribunal as they are exercising quasi-judicial functions. Ouster of jurisdiction by statutory provision may either be express or implied. When the exclusion of jurisdiction is also not expressly stated in the statute, it can be implied. In the instant case, though the language of section 4 does not say so in many words that even the jurisdiction of this court under article 226 of the Constitution to issue a writ of certiorari is barred, yet it is to be necessarily implied. When the Legislature intends to oust the jurisdiction of only civil courts and not the High Courts or the Supreme Court, it has been made apparent by them as indicated by section 39 of the Act. We, therefore, hold that section 4 violates the basic feature of the Constitution, and cannot be sustained in law. The impugned assessment orders dated July 20, 2004 in the three writ petitions are valid and enforceable - Section 4 of the Act, in so far as it ousts the jurisdiction of the High Court under articles 226 and 227 of the Constitution to question the legality of the exercise of jurisdiction by the Revenue authorities under section 3, is violative of the basic structure of the Constitution and is, therefore, declared as unconstitutional - However, instead of striking down section 4 lock stock and barrel, the words "except in the High Court under articles 226 and 227 of the Constitution" shall be read into between the words "call in question" and "the jurisdiction of any authority under section 3" of section 4 of the Act - Decided partly in favour of assessee.
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