TMI Blog1971 (11) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... ble and therefore not paid and so the turnover was exempt from sales tax. The contention was rejected. The Appellant appealed to the Deputy Commissioner of Commercial Taxes. The appeal was dismissed. Its further appeal to the Sales Tax Appellate Tribunal also proved unsuccessful. 3. The Appellant took the matter in revision to the Mysore High Court and it also filed a writ petition. Its contention in the writ petition was that Sub-section (5A) introduced in Section 5 of the Mysore General Sales Tax Act, 1957 by Act No. 9 of 1964 under which the levy was made was ultra vires the powers of Mysore Legislature and therefore void. 4. A Division Bench of the High Court by a common judgment dismissed the petitions. 5. The Mysore Sales Tax Act, 1957 hereinafter referred to as the Act , came into force on October 1, 1957. Section 5 of the Act is the principal charging section. Under the Act, as it stood originally promulgated, cloth of various categories specified in items Nos. 1 to 7 in the Second Schedule to the Act was subjected to a single point levy in accordance with the provisions of Section 5(5) of the Act. 6. Pursuant to a proposal for imposition of additional duties o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 9 of 1958 was to have effect from 1-4-58. The entry reads :- 8A. All varieties of textiles, namely, cotton, woollen or silken including, rayon, art silk or nylon, whether manufactured by handloom, powerloom or otherwise but exclusive to pure silk. 11. In Writ Petition No. 368 of 1961, the Mysore High Court considered the effect of these amendments. Applying the principle enunciated by this Court in Innamuri Gopalan v. State of Andhra Pradesh 14 S.T.C. 742, the Court held that before the charge created by Section 5(5A)(a) can come into operation excise duty or additional excise duty should have been levied and the same not paid by the assessee. And as it could not have been levied if it was not leviable under law, Section 5(5A)(a) was inapplicable. The Court said that admittedly, additional excise duty was not leviable on the stock of cloth in question. The Court further held that Entry 8A of the Fifth Schedule completely exempted the stock of cloth from the payment of any sales tax. 12. In view of the above decision of the High Court, a further amendment was effected by the Mysore Legislature by enacting Mysore Sales Tax (Amendment) Act, 1963 (Mysore Act No. 9 of 1964) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise duty or additional excise duty levied by the Central Government with effect from the fourteenth day of December 1957, has not been paid , no such words are found in the text of the substituted Sub-section 5-A. On the contrary, the position was simplified by stating that tax will be levied in respect of sales or purchases, as the case may be, relatable to the stock held by the dealer on 14-12-1957, and the possibility of taking a case beyond the purview of the sub-section was limited to manufacturers by stating the idea separately in a proviso. 15. Before us, counsel for the Appellant did not attack the reasoning of the High Court on any of the grounds taken in the special leave petition. The Appellant, however, sought permission by C.M.P. 4827/70 to raise an additional ground, namely, that on February 27, 1967 the date on which the Mysore Act No. 9 of 1964 came into force textiles having become declared goods the Mysore State Legislature was competent to levy tax on sales of textiles only subject to the restrictions and conditions laid down in Section 15 of the Central Sales Tax Act, 1956, one of the restrictions being that the rate of tax should not exceed two per cent, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oor and Company v. State of Madras [1964]8SCR217 ; one of the questions which this Court had to consider in that case was whether the Madras Legislature was competent to enact the provisions of Sub-section (1) of Section 2 of the Madras General Sales Tax (Special Provisions) Act, 1963. Hides and skins had been declared under Act LII of 1952 to be essential for the life of the community. Article 286(3) of the Constitution as it stood before its amendment by the Constitution VI Amendment Act of 1956, on September 11, 1958 provided that no law made by the Legislature of a State imposing or authorising the imposition of a tax on the sale or purchase of any such goods as have been declared by Parliament by law to be essential for the life of the community shall have effect unless it has been reserved for the consideration of the President and has received his assent. By August 28, 1963, when the Act was enacted by the Madras Legislature, Article 286(3) had been amended and Act LII of 1952 had also been repealed. Consequently there was no Constitutional requirement for the Act being reserved for the assent of the President before it could be enforced. But it was contended for the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
