9911796707
TMI Blog1970 (4) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... Parliament was challenged and followed its own decision in the other four cases. It is not necessary to give the facts of the six petitions in the High Court. As illustrative of the facts involved we may mention W. P. No. 1077 of 1959. In that case a certain D. H. Hazareth, owner of a coffee plantation, made a gift by registered deed, on January 22, 1958, of a coffee plantation and other properties in favour of his four sons. The market value of the property was Rs. 3,74,080 and the coffee plantation accounted for Rs. 3,24,700. Gift-tax of Rs. 35,612 was demanded. If the coffee plantation was left out of consideration the tax was liable to be reduced by Rs. 34,036. The authority to charge gift-tax on the gift of the coffee plantation was ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State Legislatures have exclusive power to make laws. List III (usually referred to as the Concurrent List) contains topics in respect to which both Parliament and the Legislature of a State have power to make laws. Inconsistency between laws made by Parliament and those made by the Legislatures of the States, both acting under the Concurrent List, is resolved by making parliamentary law to prevail over the law made by the State Legislature. So long as the parliamentary law continues, the State law remains inoperative but becomes operative once the parliamentary law, throwing it into shadow, is removed. Then there is the declaration in article 248 of the residuary powers of legislation. Parliament has exclusive power to make any law in resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owever, no entry in any of the three lists covers it, then it must be regarded as a matter not enumerated in any of the three lists. Then it belongs exclusively to Parliament under entry 97 of the Union List as a topic of legislation. The Gift-tax Act was enacted by Parliament and it is admitted that no entry in the Union List or the Concurrent List mentions such a tax. Therefore, Parliament purported to use its powers derived from entry 97 of the Union List read with article 248 of the Constitution. This power admittedly could not be invoked if the subject of taxes on gifts could be said to be comprehended in any entry in the State List. The High Court has accepted the contention of the taxpayers that it is so comprehended in entries 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Courts in India have considered this matter before the Supreme Court decided it. The Mysore view was not followed in S. Dhandapani v. Addl. Gift-tax Officer, Cuddalore (Madras High Court) ; Shyam Sunder v. Gift-tax Officer (disapproved on another point in the Supreme Court). A contrary view was earlier also expressed in Jupudi Sesharatnam v. Gift-tax Officer, Palacole (Andhra Pradesh High Court), and Joseph v. Gift-tax Officer (Kerala High Court). In fact the judgment under appeal stands alone. The subject of entry 49 of the State List in relation to imposition of wealth-tax came up for consideration in Sudhir Chandra Nawn v. Wealth-tax Officer, Calcutta, and the view of the High Court on the construction of this entry was affirme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 248 and entry 97 of the Union list. The pith and substance of the Gift-tax Act is to place the tax on the gift of property which may include lands and buildings. It is not a tax imposed directly upon the lands and buildings but is a tax upon the value of the total gifts made in a year which is above the exempted limit. There is no tax upon lands or buildings as units of taxation. Indeed, the lands and buildings are valued to find out the total amount of the gift and what is taxed is the gift. The value of the lands and buildings in only the measure of the value of the gift. A gift-tax is thus not a tax on lands and buildings as such (which is a tax resting upon general ownership of lands and buildings) but is a levy upon a particular us ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
