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Kokati Vs. Commercial Tax Officer, Circle Ii, Hubli - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKarnataka High Court
Decided On
Case NumberWrit Petition Nos. 1115, 1116 and 1117 of 1961
Judge
Reported in[1963]14STC84(Kar)
ActsMysore Sales Tax Act, 1957 - Sections 11; ;Mysore Sales Tax Rules - Rule 25 and 25(4); Constitution of India - Article 14
AppellantKokati
RespondentCommercial Tax Officer, Circle Ii, Hubli
Appellant AdvocateR.V. Jahagirdar, Adv.
Respondent AdvocateD.M. Chandrasekhar, High Court Government Pleader
Excerpt:
.....is proved, when the recitals in the documents show that the person who is adopted is not capable of being taken in adoption, and the deed is not executed by the person giving the boy in adoption. - therefore the delegation in question is perfectly valid. the assessee cannot complain if the legislature did not provide any right of appeal as against the tax imposed on him. we have not gone into that question as even if there is no right of appeal the petitioner cannot complain about it as a right of appeal is one that has to be conferred and not one that can be claimed as of right. 7. for the reasons mentioned above, these petitions fail and they are dismissed with costs......under that rule is highly excessive and therefore it is invalid. thirdly it was contended that no right of appeal is provided as against the levy in question and in this respect a license-holder is in a worse position when compared with a dealer who pays sales tax on his turnover. this differentiation is said to amount to a discrimination coming within the mischief of article 14 of the constitution. the next objection was that whereas a person on whom sales tax is levied can pass on his burden to his customer under section 18 of the 'act', a person who pays licence fee cannot similarly pass on the burden to his customer and such a discrimination is opposed to the equality clause in the constitution. lastly it was contended that the rules having come into force on 1st november, 1957, the.....
Judgment:
ORDER

Hegde, J.

1. In these petitions, the validity of rule 25 of the rules framed under the Mysore Sales Tax Act, 1957 (to referred to hereinafter as the 'Act') is assailed on various grounds. That rule reads :

'(1) Every licence shall cover one place of business only and shall expire on the last day of the year in respect of which it is granted, but may be renewed of a period not exceeding one year at a time on receipt of an application from the licensee.

(2) Notwithstanding anything contained in sub-rule (1) a licence shall, in addition to the licensee's place of business, cover such shandies as may be entered in the licence, provided that the turnover at the said shandies shall be included in the turnover at the licensee's place of business.

(3) Every application for renewal shall be submitted in Form 10-A so as to reach the assessing authority not later than 30 days after the commencement of the year, for which the renewal is required.

(4)(a) The fee for the grant or renewal of a licence under section 11 shall be fifty rupees and in other cases, it shall be as follows :

------------------------------------------------------------------------ Rate of licence fee for every taxable turnover Maximum of Rs. 1,000 or part licence thereof. fee. ------------------------------------------------------------------------ Rs. 1. Omitted. --- 2. For dealing in raw silk, Rupee one and naye paise 2,000 i.e. filature silk and fifty. Provided that the charka silk twisted by rate of fee payable by hand (excluding Charka silk reelers for artificial silk). dealing in silk yarn reeled by them shall be rupee one only. 3. For dealing in wheat Rupee one and naye paise 2,000 (including atta, maida, fifty soji and bran) bread, paddy, rice (including parched rice and beaten rice) ragi, jola, maize, bajra, navane, and samey 4. -| | Omitted. 5. -| ----------------------------------------------------------------- Explanation : The determination of the turnover for purposes of this sub-rule shall be in accordance with the provisions of rules 6 and 7.'

2. It was firstly contended that the imposition of tax under rule 25(4) being the exercise of a legislative power and the same having been delegated to the rule-making authority without giving any guidance for its exercise is void in law. The next contention was that the levy prescribed under that rule is highly excessive and therefore it is invalid. Thirdly it was contended that no right of appeal is provided as against the levy in question and in this respect a license-holder is in a worse position when compared with a dealer who pays sales tax on his turnover. This differentiation is said to amount to a discrimination coming within the mischief of Article 14 of the Constitution. The next objection was that whereas a person on whom sales tax is levied can pass on his burden to his customer under section 18 of the 'Act', a person who pays licence fee cannot similarly pass on the burden to his customer and such a discrimination is opposed to the equality clause in the Constitution. Lastly it was contended that the rules having come into force on 1st November, 1957, the petitioner whose assessment year commenced from 1st October, 1957, could not have been taxed for the period from 1st October, 1957, to 23rd October, 1957, under those rules. There is no substance in any one of these contentions. We shall now take up for consideration each one of the above noticed contentions.

3. The charging section under the 'Act' is section 5. Section 6 provides for exemptions. If any dealer does not desire to have the benefit of the exemptions provided under section 6, it is open to him to forego the same. He can always choose to be taxed under section 5. Section 6 provides for the levy of licence fee. The proviso to that section says that the licence fee shall in no case exceed rupees two thousand per annum. As held by this Court in C.R.P. Nos. 1533 of 1960 and 635 of 1961 (Since reported as C. S. Nagaraja Setty and Another v. Deputy Commissioner of Commercial Taxes, City Division, Bangalore [1962] 13 S.T.C. 578) the levy under section 6 read with rule 25 though lab labelled as a fee is really tax. The Legislature has fixed the maximum tax that could be levied. The licence fee that can be levied by the rule-making authority cannot exceed the maximum fixed by the Legislature. That being so, it cannot be said that there was any abdication of legislative power by the Legislature. The facts of the case in Shanmugha Oil Mills v. Coimbatore Market Committee : AIR1960Mad160 are not in pari materia with the facts of the present case. In fact the ratio of the decision in that case is against the contention advanced by Sri Katageri, the learned counsel for the petitioners. In the instant case the upper limit of the licence fee that can be lived is fixed by the Legislature. Therefore the delegation in question is perfectly valid. No imposition of tax can be held to be an invalid imposition merely because its incidence is high.

4. The right of apple is not a fundamental right. It must be provided under some Statute. The assessee cannot complain if the Legislature did not provide any right of appeal as against the tax imposed on him. According to the learned Government Pleader, the view of the learned counsel for the assessee that there is no right of appeal against any fee imposed is not correct. We have not gone into that question as even if there is no right of appeal the petitioner cannot complain about it as a right of appeal is one that has to be conferred and not one that can be claimed as of right.

5. The grievance of the assessee that whereas the persons on whom seals tax as such is imposed can pass on the burden to their customers, those on whom licence fee is levied cannot pass on their burden to their customers, and therefore there is discrimination between these two classes of dealers, does not appear to have any force in it. The two sets of dealers are not identically placed. The differentiation made is justified by the rule of classifications.

6. The last contention of Sri B. V. Katageri, that the rules having come into force from 1st November, 1957, rule 25 should not have been applied to his turnover for the period commencing from 1st October, 1957, and ending with 23rd October, 1957, is without force. If that rule is not made applicable then the assessees would have been liable to pay sales tax under section 5 which means that they would have had to pay more tax. The rule in question was given retrospective effect.

7. For the reasons mentioned above, these petitions fail and they are dismissed with costs. Advocate's fee Rs. 100 (one set).

8. Petitions dismissed.


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