9911796707
TMI Blog1986 (6) TMI 237X X X X Extracts X X X X X X X X Extracts X X X X ..... t in this writ application. According to the petitioner, the provisions of the Act put unreasonable restrictions on his fundamental rights and are confiscatory in nature. It is submitted that the Act does not come within the ambit and scope of entry 54 of List II of the Seventh Schedule of the Constitution of India. The Act is also challenged on the ground that it does not permit the burden of additional tax to be passed on to the customer. The petitioner has accordingly prayed that the Act should be declared ultra vires and unconstitutional. 2.. A counter has been filed on behalf of the State justifying imposition of the additional tax. It is stated the Act does not contravene any of the provisions of the Constitution and that similar Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay the tax having been fixed on the dealer, it is unreasonable that he should be obliged to pay the tax irrespective of whether he has earned any profit during the year. Mr. Patnaik, learned standing counsel, submitted that similar provisions under the Tamil Nadu Additional Sales Tax Act (14 of 1970) were considered and upheld by the Supreme Court in the decision reported in [1974] 34 STC 73; AIR 1974 SC 2272 (S. Kodar v. State of Kerala). It is further pointed out that the points urged in the present writ application had been urged before the Supreme Court and had been answered in the following manner: "The appellants contend firstly that the Legislature of Tamil Nadu has no power to enact the Act as the tax imposed by the Act is a tax on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he year. The decision in Ernakulam Radio Company v. State of Kerala [1966] 18 STC 445 at 449 (Ker), which was affirmed by a Division Bench of the Kerala High Court in Kilikar v. Sales Tax Officer [1968] 21 STC 252 took that view. The same view was taken by the Andhra Pradesh High Court in A.S. Ramachandra Rao v. State of Andhra Pradesh [1969] 24 STC 133. This is the correct view. Entry 54 in List II authorises the State Legislature to impose a tax on the sale or purchase of goods. So, the contention of the appellants that the additional sales tax is not a tax on sales but on the income of the dealer is without any basis. As regards the second contention that the provisions of the Act are violative of the fundamental rights of the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods." 5.. The principles enunciated in the aforesaid decision have full application to the facts of this case. No authentic material has been placed before the court to show how the additional tax is confiscatory in character. The grievance of the petitioner that the Act does not permit him to pass on the liability to the customer cannot be a ground to strike down the Act, because as pointed out above it is not necessary that the dealer should be enabled to pass on the incidence of the tax on sale to the purchaser in order that it might be a tax on sale of goods. On consideration, we find that the provisions of the Act do not infringe any fundamental rights of the petitioner and are not unconstitutional. 6.. In the result, this writ app ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
