TMI Blog1967 (7) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... ased by a surcharge at the rate of five per centum of the tax payable for that year and the provisions of the Kerala General Sales Tax Act, 1963, shall, as the case may be, apply in relation to the said surcharge as they apply in relation to the tax payable under the said Act: Provided that where in respect of declared goods as defined in clause (c) of section 2 of the Central Sales Tax Act, 1956, the tax payable by such dealer under the Kerala General Sales Tax Act, 1963, together with the surcharge payable under this sub-section, exceeds two per centum of the sale or purchase price, the rate of surcharge in respect of such goods shall be reduced to such an extent that the tax and the surcharge together shall not exceed two per centum of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h has a relation to the subject covered by that Act would stand impliedly repealed when it came into force on Ist April, 1963. There is a specific section in that Act, section 61, which deals with the subject of repeals. That section repeals only one enactment, namely, the General Sales Tax Act, 1125. The non-mention of the Kerala Surcharge on Taxes Act, 1957, in section 61 should itself be indicative of the fact that the Legislature did not intend that enactment to be repealed, and under such circumstances we will not be justified in inferring any case of an implied repeal. There is also the fact that the Legislature chose to amend section 3 of the Kerala Surcharge on Taxes Act, 1957, subsequent to the Kerala General Sales Tax Act, 1963, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence to the previous legislation, or unless there is a necessary inconsistency in the two Acts standing together." And applying the test we have no hesitation in holding that section 3 of the Kerala Surcharge on Taxes Act, 1957, and the Kerala General Sales Tax Act, 1963, can co-exist, and that the latter does not effect any implied repeal of the former provisions. 7.. Contention No. (2)-Article 14 of the Constitution provides that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. The contention that this provision has been violated is based on the assumption that the surcharge imposed by section 3 is discriminatory in character. 8.. The tax under the Kerala ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticle, as interpreted by the courts, should run in some such words as these: "The State shall not deny to any person equality before the law or equal protection of the law provided that nothing herein contained shall prevent the State from making a law based on or involving a classification founded on an intelligible differentia having a rational relation to the object sought to be achieved by the law" (page 188). And so read there can be no doubt that section 3 of the Kerala Surcharge on Taxes Act, 1957, is not violative of Article 14 of the Constitution. 12.. Contention No. (3)-This contention is based on Article 19(1)(f) and (g) of the Constitution which provides that all citizens shall have the right to acquire, hold and dispose of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be considered as an item of income taxation as contended by the assessees. In other words the tax imposed by section 3 comes under entry 54 in List II (State List) of the Seventh Schedule to the Constitution-Taxes on the sale or purchase of goods other than newspapers, subject to the provisions of entry 92A of List I-and not under entry 82 in List I (Union List) of the Seventh Schedule to the Constitution-Taxes on income other than agricultural income. 14.. In the O.P. from which Writ Appeal No. 139 of 1966 arises the petitioner contented that the use of the words "by the levy of a surcharge on such taxes" in the preamble to the Kerala Surcharge on Taxes Act, 1957, indicated that what the Legislature wanted was to impose a tax on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollecting the amount of the tax from the persons with whom he deals. This Court has already decided in the case of Tata Iron Steel Co. Ltd. v. The State of Bihar[1958] 9 S.T.C. 267. that in law a sales tax need not be an indirect tax and that a tax can be a sales tax though the primary liability for it is put upon a person without giving him any power to recoup the amount of the tax payable from any other party." 16.. Contention No. (5)-The contention is based on Article 276 of Constitution under which taxes on professions, trades, callings and employments shall not exceed two hundred and fifty rupees per annum. In order to attract the article the tax must be a tax on professions, trades, callings and employments. As we have already indic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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