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TMI Blog2009 (10) TMI 878X X X X Extracts X X X X X X X X Extracts X X X X ..... rst petitioner-association. The writ petition was filed, challenging the proposed amendment vide Kerala Finance Bill, 2004, to have effect from April 1, 2004. Subsequently, the enactment came, when the petitioner got the writ petition amended by filing I.A. No. 12687 of 2005, challenging the concerned provisions in "the Act". In the opening paragraph itself, it is stated that the first petitioner is presenting the writ petition "for and on behalf " of the members in a "representative capacity"; simultaneously giving the list of the members as per exhibit P2. It is also stated that the second petitioner, who is the Secretary of the first petitioner-association, is maintaining the writ petition, both in his individual capacity, as well as in his capacity as Secretary of the first petitioner-association. The third petitioner has joined the proceedings in his individual capacity and also as a member of the first petitionerassociation. The case put forth by the petitioners is that undue loss and hardships have been resulted by virtue of the amendment brought in vide sub-section (5A), whereby the fees for "renewal of registration" have been enhanced to "Rs. 500" and "Rs. 1,500" in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egra, particularly in view of the specific observations made by this court in exhibit P3 judgment and the stipulations enabling such exercise in the manner and to the extent as specified therein. It is also contended that the petitioners' idea and understanding as to the scope and ambit of exhibit P3 judgment is thoroughly wrong and misconceived; simultaneously asserting that the erstwhile principle of "quid pro quo" has been watered down as on date, by virtue of declaration of law by the apex court and there is no generic difference between "tax" and "fee". The respondents further contend that the prescription of renewal fee under sub-section (5A) is rather regulatory in nature and the "service" being rendered by the State in general, including to the petitioners, with regard to the various steps involved in connection with the registration and other incidental aspects, very much justifies imposition of renewal fee. The State has got a further contention that absolutely no material has been produced by the petitioners to show that the petitioners have been authorised to file the proceedings in a "representative capacity" for and on behalf of the members enlisted in exhibit P2; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n sub-section (1) and continued to be valid on such renewal. After discussing the facts and figures and also the judicial precedents cited from both the sides, it was held in paragraph 4 as follows: "In this case there is no dispute between the parties that what is levied in the form of licence fees is a fee and not a tax. The learned Government Pleader submitted that what is collected is a fee. In the counter-affidavit also Government justifies the imposition of licence fees as fee and not as tax. Therefore, we need not go at length as to whether the levy is tax or fee." After discussing the legislative competence in imposing levy of fees, it was specifically held in the very next paragraph as follows: "Therefore, Kerala General Sales Tax Act was enacted within the powers of the State, as can be seen from article 246(3) of the Constitution of India. Item 66 of List II of the Seventh Schedule also provides as follows: '66. Fees in respect of any of the matters in this List, but not including fees taken in any court'." It was further observed that since the Act itself was passed with legislative competence, "fees" also can be charged under the Act under item 66 of List ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act was not challenged, simultaneously adding that once a dealer was registered depending upon the turnover, security also could be increased. After sustaining the provision under section 14(1) providing for payment of requisite fees for initial registration, the Division Bench of this court held in the subsequent paragraph that the stipulation contained in sub-section (5) of section 14 for remitting the "same fee" for renewal of the registration, which was required to be made on an year-wise basis, did not have any rationale in relation to the "service" to be rendered. It was accordingly, that sub-section (5) of section 14 was set aside, holding it as unreasonable, in so far as it required the registered assessee to pay renewal fee payable from year to year at the same rate of initial registration fee, under subsection (1) of section 14, since collection of fees to such extent was without any "quid pro quo" and unconstitutional. Simultaneously, it was added that there was nothing wrong in the provisions incorporated for renewing the licence as year-wise registration can be given and further that the State will be free to charge nominal fees for covering up the expenses, if an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion v. State of Kerala reported in [2004] 12 KTR 114 (Ker). 8.. The general co-relationship between the totality of the fee on the one hand and the totality of the expenses of the services on the other, would justify the levy of renewal fee in terms of section 14(5A). 9.. It is submitted that the petitioners have placed no materials before this honourable court to show that the total levy on account of renewal of registration exceeds the expenses. 10.. . . . 11.. The arbitrariness alleged in distribution of burden of renewal fee among dealers falling under (a) and (b) categories specified in section 14(5A) is illusory. The renewal fee contemplated under the said section is confined only with regard to the registration under the Kerala General Sales Tax Act. The classification made out is on cost-wise analysis. It is submitted that multiplicity of records to be verified in the case of categories (b) dealers would justify the higher rate of renewal fee payable by them in comparison to the category (a) dealers." It is also very much relevant to note that while enacting sub-section (5A) stipulating renewal fees to an extent of Rs. 500 in the case of dealers registered under the "K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 500; whereas in the case of dealers having "Kerala general sales tax and Central sales tax " registration, it is Rs. 1,500. This court does not find it as exorbitant, arbitrary or shockingly disproportionate to the extent of service being provided in connection with the steps for renewal of registration and as such, no interference is called for. With regard to the maintainability of the writ petition, even though it has been stated in the opening paragraph of the writ petition that the same has been preferred in a "representative capacity " (for and on behalf of more than 800 dealers enlisted in exhibit P2), absolutely no document has been produced before this court to show that the petitioners have been authorised by all such persons to file the proceedings on their behalf as well. Similarly, the petitioners have also not paid the requisite court fee on behalf of all such members, but for having effected a sum of Rs. 300 in respect of the three petitioners. Schedule II, 11(1)(iii) under the Kerala Court Fees and Suit Valuation Act clearly stipulates that the court fee payable in respect of the writ petition filed before the High Court is Rs. 100 per petitioner. If any reli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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