TMI Blog1958 (4) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... Dated:- 7-4-1958 - DAS S.R., VENKATARAMA AIYAR T.L., DAS S.K., SARKAR A.K. AND VIVIAN BOSE JJ. Sardar Bahadur, Advocate, for Intervener No. 4. Radhey Lal Aggarwal, Advocate, for the petitioners. Ratnaparkhi, A.G., Advocate, for Intervener No. 5. G.C. Mathur and C.P. Lal, Advocate, for Intervener No. 3. T.M. Sen, Advocate, for Intervenve. Nos. 1. 2. C.K. Daphtary, Solicitor-General of India, (R.H. Dhebar, Advocate with him), for the respondents. -------------------------------------------------- The Judgment of the Court was delivered by VENKATARAMA AIYAR, J.- The petitioners are building contractors carrying on business in Delhi, and they have filed the present applications under Article 32 of the Constitution challenging the validity of certain provisions of the Bengal Finance (Sales Tax) Act (Bengal VI of 1941) which had been extended to the State of Delhi by a notification dated April 28, 1951. The impugned provisions of the Act may now be referred to. Section 2(d) of the Act defines "goods" as including "all materials, articles and commodities, whether or not to be used in the construction, fitting out, improvement o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State List." In exercise of the power conferred by this Article, Parliament enacted the Part C States (Laws) Act No. XXX of 1950, and section 2 thereof is as follows: "The Central Government may, by notification in the Official Gazette, extend to any Part C State (other than Coorg and the Andaman and Nicobar Islands) or to any part of such State, with such restrictions and modifications as it thinks fit, any enactment which is in force in a Part A State at the date of the Notification......." On April 28, 1951, the Chief Commissioner of Delhi issued a notification under this section extending the operation of the Bengal Finance (Sales Tax) Act, 1941, to Delhi as from November 1, 1951. Acting under the provisions of this Act, the Sales Tax Officer, Karolbagh, Delhi, issued on June 12, 1952, notices to the petitioners calling upon them to submit returns of their receipts from building contracts and to deposit the taxes due thereon. In compliance with these notices, the petitioners were sending quarterly returns of their taxable turnover and assessment orders were also made in respect of their annual turn- over for the years 1951-1952 and 1952-1953, and the amounts due thereu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issal, they had no right to invoke the jurisdiction of this Court under Arti- cle 32 for obtaining the same reliefs. He further contended that the claim of the petitioners that the assessments in question, being unauthorised, constituted an interference with their fundamental right to carry on business under Article 19(1)(g) could not be maintained inasmuch as assessment proceedings had been completed and the tax realised. He also argued that even if the petitioners were right in their contention that the assessments were unauthorised, their remedy was to sue for refund of the taxes paid, and that the applications for writ of certiorari to quash the orders of assessment were misconceived. It was further contended that the payments having been made by the petitioners voluntarily-it might be under a misconception of their rights-they had no right to claim refund of the amounts even by action. These contentions raised questions of considerable importance; but it is unnecessary to express our opinion thereon, as the petitioners also pray for a writ of mandamus directing the respondents to forbear from imposing sales tax in future, and it will be more satisfactory to decide the case on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re be competent to Parliament to impose tax on the supply of materials in building contracts and to impose it under the name of sales tax, as has been done by the Parliament of the Commonwealth of Australia or by the Legislatures of the American States. The decision in Civil Appeal No. 210 of 1956 [1958] 9 S.T.C. 353., which was given on a statute passed by the Provincial Legislature under the Government of India Act, 1935, has therefore no application to the present case. It is argued that though Parliament has the power under Article 246(4) to make a law imposing tax on construction contracts, that power is subject to the limitation contained in Article 248, that under that Article it is Parliament that has the exclusive power to enact laws in respect of matters not enumerated in the Lists, including taxation, and that such a power could properly be exercised only by Parliament itself imposing a tax and not by its extending the operation of a taxa- tion law passed by the Legislature of a State; and that section 2 of the Part C States (Laws) Act must be held to be bad as being repugnant to Article 248(2) in so far as it conferred on the Government authority to extend a taxatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that with reference to different topics of legislation on which the several States in Part A had enacted different statutes, the authority acting under section 2 should have the discretion to extend that statute in any of the Part A States which is best suited to the conditions in the particular Part C State to which it is to be extend- ed, and that, further, the authority should have the power to extend it with suitable "restrictions and modifications". It could not have been intended by this section that the authority concerned should take upon itself to examine the vires of each and every one of the provisions in the statute, and then extend only such of them as it considers to be valid. In our view, the expression "enactment which is in force in a Part A State" must be construed as meaning "statute which is in operation in a Part A State" as distinct from a statute which had been repealed and it cannot be interpreted as having reference to individual sections or provisions of a statute. But even if we accept the narrow construction contended for by the petitioners, that would not make any difference in the result, as the authority conferred by section 2 on the Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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