TMI Blog1961 (4) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... issed. - Civil Appeals Nos. 448 and 449 of 1957 With Writ Petitions Nos. 97 and 107 of 1961 - - - Dated:- 5-4-1961 - KAPUR, J.L., AIYYAR, T.L. VENKATARAMA, DAS, S.K., HIDAYATULLAH, M. AND SHAH, J.C., JJ. For the Appellant : M. C. Setalvad, Attorney-General for India, N. C. Chatterjee, D. N. Mukherjee and B. N. Ghose, V. L. Narasimhamoorty, S. N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, For the Respondent : A. V. Viswanatha Sastri and K. R. Choudhri JUDGMENT KAPUR., J.- A Divisional Bench of this, Court made a reference* under the proviso to Cl. (3) of Art. 145 on the. following two points:- (1) Whether the imposition in the present caw offends Art. 276 or 301 of the Constitution ? *See p. 698 ante. (2) Whether the failure to notify the final resolution of the imposition of the tax in the Government, Gazette is fatal to the tax ? The facts of the case are set out in the order of the Divisional Bench and it is unnecessary to restate them. The appellants in the two appeals and in the two petitions under Art. 32 are challenging the constitutionality of the octroi duty on cotton and wool imposed by the respondent Corporation with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of law. But the respondent relied upon s. 38(1)(b) of the Act which cures defects or irregularities not affecting the merits of the case. That section provides:- S. 38(1). No act done, or proceeding taken under this Act shall be questioned merely on the ground- (a).................................................... (b) of any defect or irregularity in such act or proceeding, not affecting the merits of the case. Thus under that provision any defect or irregularity not affecting the merits of the case saves any act done or proceeding taken under the Act on the ground of such irregularity or defect. The appellants contended that the section has no application to defects in regard to procedure under s. 98 of the Act for the imposition of taxes because s. 38 read as a whole refers to a different situation and that there was internal evidence in the section itself to show that it has no relevance to the objection taken by the appellants. The section, it was argued, is in Chapter 11 dealing with Municipal Authorities and this particular provision is in that Part of the Chapter which deals with provisions common to the Corporation and it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 301 of the Constitution, Article 276 as far as it is relevant for the purposes of this case provides:- Art. 276(1) Notwithstanding anything in article 246, no law of the Legislature of a State relating to taxes for the benefit of the State or of a municipality, district, board, local board or other local authority therein in respect of professions, trades, callings or employments shall be invalid on the ground that it relates to a tax on income. (2) The total amount payable in respect of any one person to the State or to any one municipality, district board, local board or other local authority in the State by way of taxes on professions, trades, callings and employment shall not exceed two hundred and fifty rupees per annum. It was contended that the imposition of the impugned tax contravenes the provision of Art. 276(2) as it is of a sum more than ₹ 250 and is therefore unconstitutional. This contention is not well founded. There 'was a similar provision in the Government of India Act, 1935, i.e., s. 142-A but there the amount mentioned in sub-s. (2) was ₹ 50 per annum and this limitation was placed as from after the 31st day of March, 193 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Factory v. The Municipal Committee, Washim (I.L.R. [1958] Bom. 625); and Secretary, Municipal Committee, Karanja v. The New East India Press Co. Ltd., Bombay (A.I.R. 1949 Nag. 215). None of these cases has any applicability to the tax now impugned because the facts were different and the imposition was of a different character. The attack on the constitutionality of the impugned tax on the ground of contravention of Art. 276 is therefore not sustainable and must be rejected. The second ground of assault on the constitutionality of the tax imposed is based on contravention of 'Art. 301 which provides:- Art. 301. Subject to the other provisions of this Part, trade, commerce and intercourse throughout the territory of India shall be free. It was contended that the tax imposed directly affected the movement of goods and therefore violates Art. 301 which guarantees the freedom of trade throughout the territory of India. In Atiabari Tea Co. Ltd. v. State of Assam ([1961] S.C.R. 809), Gajendragadkar, J., giving the opinion of the majority said :- that the content of freedom provided for by Art. 301 was larger than the freedom contemplated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposed by resorting to the provisions of Art. 304(b) which provides: Art. 304. Notwithstanding anything in article 301 or article 303, the Legislature of a State may by law- (a).................................................... (b) impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State as may be required in the public interest: Provided that no Bill or amendment for the purposes of clause (b) shall be introduced or moved in the Legislature of a State without the previous sanction of the President. The argument therefore was this that the Act being an existing law might be saved under Art. 305 but that would operate on and save the taxes on articles specified in Schedule III of Part V, item 18, i.e., octroi on animals and goods set out in Classes I to VII of that Part but would not save the octroi on other articles under Class VIII imposed after the Constitution because that would be an addition of a bye-law, rule or order and would not fall within the term existing law . The impugned tax was levied under class VIII set out in part V which is as follows :- Octori Maximum rate Class VIII-Other articles whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jected to a purchase tax under s. 14(6) of the Bombay Sales Tax Act, 1953 (Act III of 1953) The contention of the assessee was that the goods had not been specified in the Sales Tax Act. In that Act in the schedule were mentioned the goods the sale or purchase of which was subject to tax and the last entry was of all goods other than those specified from time to time in Schedule A (and section 7A) and in the preceding entries. The question for decision was whether that entry amounted to specification of goods for the purposes of Sales Tax and it was held that it was. This case was sought to be distinguished on the ground that the words there were all goods other than and those words would comprise every article which was not specifically mentioned in the Schedule. We are unable to accept this distinction because even though the words used in the present statute are different the combined effect of ss. 97 and 130 and Part V of Schedule III including Class VIII which have been set out above is that the words are of 'very general nature and would have the same effect as if all articles were intended to be and were included. In view of this it is unnecessary to discuss the sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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