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Lakshminarayana Commercial Corporation and ors. Vs. the Commercial Tax Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAndhra Pradesh High Court
Decided On
Case Number Writ Petitions Nos. 5228, 5244, 5246, 5523, 5524, 5525, 5526 and 5527 of 1968, 738 and 746 of 1969,
Judge
Reported in[1972]29STC527(AP)
AppellantLakshminarayana Commercial Corporation and ors.
RespondentThe Commercial Tax Officer and ors.
Appellant Advocate T. Anantha Babu, ;P. Venkatarama Reddy and ; B.S. Palnitkar, Advs.
Respondent Advocate Adv.-General
Disposition Petition allowed
Excerpt:
- all india services act, 1951. sections 32(c) (as amended by section 3 of amendment act, 2005] & 10 & general clauses act, 1897, section 6: [g.s. singhvi, cj, dr.g. yethirajulu, ramesh ranganathan, g.bhavani prasad, c.v. nagarjuna reddy, jj] exemption of building from applicability of provisions of act held, (per majority) section 32(c) of the act provides that the provisions of the act shall not apply to any building the rent of which as on the date of the commencement of the a.p. buildings ( lease, rent and eviction) control (amendment) act 2005 exceeds rs.3,500/- per month in the areas covered by the municipal corporations in the state and rs.2,000/- per month in other areas. there is nothing in the provisions of the amendment act which either expressly or by necessary implication.....gopal rao ekbote, j. 1. in this batch of writ petitions, the validity of section 30-b of the andhra pradesh general sales tax act (6 of 1957) hereinafter called 'the act', is challenged. section 30-b read as follows :(1) if any person-(a) not being a dealer liable to pay tax under this act, collects any sum by way of tax, or being a dealer collects any amount by way of tax in excess of the tax payable by him, or otherwise collects tax in contravention of the provisions of section 30-a, or (b) being a dealer liable to pay tax under this act, or being a dealer who was required to do so by the prescribed authority by a notice served on him fails in contravention of section 25 to keep a true account of the value of the goods purchased or sold by him, or fails when directed so to do under that.....
Judgment:

Gopal Rao Ekbote, J.

1. In this batch of writ petitions, the validity of Section 30-B of the Andhra Pradesh General Sales Tax Act (6 of 1957) hereinafter called 'the Act', is challenged. Section 30-B read as follows :

(1) If any person-(a) not being a dealer liable to pay tax under this Act, collects any sum by way of tax, or being a dealer collects any amount by way of tax in excess of the tax payable by him, or otherwise collects tax in contravention of the provisions of Section 30-A, or (b) being a dealer liable to pay tax under this Act, or being a dealer who was required to do so by the prescribed authority by a notice served on him fails in contravention of Section 25 to keep a true account of the value of the goods purchased or sold by him, or fails when directed so to do under that section to keep any accounts or records in accordance with the directions, he shall be liable to pay, in addition to any tax for which he may be liable, a penalty of an amount not exceeding two thousand rupees, or double the amount of tax which would have been payable had there been no such failure, whichever is less ; and in addition, in the case of contravention referred to in Clause (a), any sum so collected shall be forfeited, to the State Government.

(2) If the assessing authority in the course of any proceeding under this Act or otherwise has reason to believe that any person has become liable to a penalty with or without forfeiture of any sum under Sub-section (1), he shall serve on such person a notice in the prescribed form requiring him on a date and at a place specified in the notice to attend and show cause why a penalty with or without forfeiture of any sum as provided in Sub-section (1) should not be imposed on him.

(3) The assessing authority shall thereupon hold an inquiry and shall make such order as he thinks fit.

(4) No prosecution for an offence under this Act, shall be instituted in respect of the same facts on which a penalty has been imposed under this section.

2. A close and careful analysis of this section would indicate that if any person (a) (i) not being a dealer liable to pay tax under the Act, nevertheless collects any sum by way of tax or (ii) being a dealer collects any amount by way of tax in excess of the tax or (iii) otherwise collects tax in contravention of Section 30-A; or (b) (i) being a dealer liable to pay tax under the Act or (ii) being a dealer who was required to do so by the prescribed authority, fails (in contravention of Section 25) to keep any accounts or records, he shall be liable to pay in addition to any tax a penalty of an amount not exceeding Rs. 2,000 or double the amount of tax which would have been payable had there been no such failure, whichever is less; and in addition, in the case of contravention referred to in Clause (a), any sum so collected shall be forfeited to the State Government.

3. It is seen that a person who contravenes Section 30-A or Section 25 of the Act is held under this section liable to .pay tax, if any, as well as penalty within the limits set forth in the section, and in cases falling under Clause (a) apart from the above, the sum so collected shall also be forfeited to the State Government. Thus in cases of contravention of Section 25, tax, if any, and penalty within the limits shall be levied. But in cases of contravention of Section 30-A, apart from levying of tax and penalty, the sum collected in contravention of Section 30-A shall also be forfeited.

4. Now, Section 30-A imposes prohibition against collection of any sum by way of tax, firstly, in a case where no tax is payable under the Act in respect of sale or purchase of any goods; and secondly, by a person who is not a dealer; and thirdly, by a dealer any amount in excess of the amount of tax payable by him under the Act. The contravention of any one of the said three things would attract the provisions of Section 30-B. And in such cases, apart from the levying of tax and imposing of penalty, the sum collected in contravention of Section 30-A shall also be forfeited.

5. The definition of 'turnover' as is given in Section 2(s) would include 'any other sums charged by the dealer, whatever be the description, name or object thereof'. There can therefore be little doubt that any sum collected by way of tax in contravention of Section 30-A would nevertheless be included in the term 'turnover'. And on such turnover the dealer shall be liable to pay tax under the Act. Since such an amount is included within the term of turnover whether the dealer shows this amount in his turnover and therefore is taxed or where he does not show so such amount in his turnover but is nevertheless taxed on escaped turnover, in either case under Section 30-B a penalty can be levied apart from the tax.

6. And when it directs that in addition to the tax and penalty the amount so collected in contravention of Section 30-A shall be forfeited to the State Government, it gives rise to the question whether the State Legislature is competent to enact such a provision.

7. It is not in doubt that under entry 54 of List II of the Seventh Schedule to the Constitution, the State Legislature can enact a law taxing transactions of sales or purchases of goods. The entry therefore empowers the State Legislature to make laws for taxing sales and purchases of goods. It does not expressly empower the State Legislature to enact a law by which a dealer who has collected a tax without authority of any law is either required to hand over the amount to the State Government or enact for the forfeiture of such amounts to the State Government, obviously because the collection so made would not be a tax levied under the Act.

8. In Abdul Quader & Co. v. Sales Tax Officer [1964] 15 S.T.C. 403 (S.C.) the Supreme Court held:

Now it is clear that the sums so collected by way of tax are not in fact tax exigible under the Act. So it cannot be said that the State Legislature was directly legislating for the imposition of sales or purchase tax under entry 54 of List II when it made such a provision, for on the face of the provision, the amount, though collected by way of tax, was not exigible as tax under the law.

9. The Supreme Court struck down Section 11(2) of the Hyderabad General Sales Tax Act (14 of 1950) on the ground that the State Legislature was incompetent to enact such a provision. Section 11 ran as under:

11. (1) No person who is not registered as a dealer shall collect any amount by way of tax under this Act nor shall a registered dealer make any such collection before the 1st day of May, 1950, except in accordance with such conditions and restrictions, if any, as may be prescribed;

Provided that Government may exempt persons who are not registered dealers from the provisions of this sub-section until such date, not being later than the 1st day of June, 1950, as Government may direct.

(2) Notwithstanding anything to the contrary contained in any order of an officer or Tribunal or the judgment, decree or order of a court, every person who has collected or collects on or after 1st May, 1950, any amount by way of tax otherwise than in accordance with the provisions of this Act, shall pay over to the Government, within such time and in such manner as may be prescribed the amount so collected by him, and in default of such payment the said amount shall be recovered from him as if it were arrears of land revenue.

10. On the lines of Section 11, the Andhra Pradesh General Sales Tax Act had made a provision in the form of Section 5-C. It read as follows:

Where a dealer who is liable to pay additional tax under Section 5-A has collected any amount by way of tax or additional tax in respect of transactions not liable to tax under this Act, or in excess of the tax or additional tax leviable under this Act, he shall pay over to the State Government such amount or excess amount so collected.

11. One of us (Gopal Rao Ekbote, J.) considered the validity of the said section in V. Audiseshiah & Co. v. State of Andhra Pradesh, [1968] 22 S.T.C. 222 and held that Section 5-C is ultra vires of the Constitution as the Government had no right in realising the amount from the dealers.

12. In Ashoka Marketing Limited v. State of Bihar and Anr. Since reported at [1970] 26 S.T.C. 254 (S.C.) unreported judgment of the Supreme Court in C.A. No. 2004 of 1966 dated 30th January, 1970, the Supreme Court was called upon to consider firstly, whether Section 20-A of the Bihar Sales Tax Act (19 of 1959) is within the competence of the State Legislature and secondly, whether the order made under Section 20-A for depositing with the State Government the amount collected by a dealer from his constituents to recoup himself for payment of sales tax under the Act of 1947, which amount according to that Act the constituent was not liable to pay, was proper.

13. Section 20-A, which was more reasonable than Section 11 of the Hyderabad General Sales Tax Act and Section 5-C of the Andhra Pradesh General Sales Tax Act, read as follows :

(1) No person who is not a registered dealer shall collect from any person any amount, by whatever name or description it may be called, towards or purporting to be tax on sale of goods.

(2) No registered dealer shall collect from any person any such amount, except in a case in which and to the extent to which such dealer is liable to pay tax under this Act.

(3) (a) Notwithstanding anything to the contrary contained in any law or contract or any judgment, decree or order of any Tribunal, court or authority, if the prescribed authority has reason to believe that any dealer has or had, at any time, whether before or after the commencement of this Act, collected any such amount, in a case in which or to an extent to which the said dealer was or is not liable to pay such amount, it shall serve on such dealer a notice in the prescribed manner requiring him on a date at a time and place to be specified therein, either to attend in person or through an authorised representative to show cause why he should not deposit into the Government treasury the amount so collected by him.

(b) On the day specified in the notice under Clause (a) or as soon thereafter as may be, the prescribed authority may, after giving the dealer or his authorised representative a reasonable opportunity of being heard and examining such accounts and other evidence as may be produced by or on behalf of the dealer and making such further enquiry as it may deem necessary, order that the dealer shall deposit forthwith into the Government treasury, the amount found to have been so collected by the dealer and not refunded prior to the receipt of the notice aforesaid to the person from whom it had been collected.

(4) Where any amount so collected by the dealer and deposited by him into the Government treasury has already been refunded to the dealer in pursuance of or as a result of any judgment, decree or order of any Tribunal, court or authority, but the dealer has not refunded the amount to the person from whom he had collected it, the prescribed authority shall, notwithstanding such refund to the dealer, proceed to take action in accordance with the provisions of Sub-section (3) for securing deposit of such amount.

(5) Where any such amount has not been refunded to the dealer before the commencement of this Act, but a refund has been directed by a court, Tribunal or authority, the amount shall, notwithstanding such direction, be deemed to be a deposit made in pursuance of an order under Sub-section (3).

(6) * * *

(7) Notwithstanding anything to the contrary contained in any law or contract, when any amount is deposited by a dealer in compliance with an order under Sub-section (3) or Sub-section (4) or is deemed, under Sub-section (5) to have been so deposited, such deposit shall constitute a good and complete discharge of the liability of the dealer in respect of such amount to the person from whom it was collected.

(8) The person from whom the dealer has collected the amount deposited in pursuance of an order under Sub-section (3) or Sub-section (4) or deemed, under Sub-section (5), to have been so deposited shall be entitled to apply to the prescribed authority in the prescribed manner for refund of the amount to him and the said authority shall allow the refund if it is satisfied that the claim is in order :

Provided that no such refund shall be allowed unless the application is made before the expiry of the period within which the applicant could have claimed the amount from the dealer by a civil suit had his liability not been discharged in accordance with the provisions of Sub-section (7):

Provided further that no claim for such refund shall be rejected without giving the applicant a reasonable opportunity of being heard....

14. The Supreme Court did not express any opinion on the second question, but on the first question it held relying upon Abdul Quader & Co. v. Sales Tax Officer [1964] 15 S.T.C. 403 at p. 408 (S.C.) that Section 20-A is a provision for levying an amount as tax which the State is incompetent to levy. 'A mere device cannot be permitted to defeat the provisions of the Constitution by clothing the claim in the form of a demand for depositing the money with the State which the dealer has collected, but which he was not entitled to collect', observed the Supreme Court.

15. What must necessarily follow is that the State Legislature is not competent to make a law directing the dealer to pay over the amount to the State Government as any sum so collected by way of tax is not a tax on transaction of sale or purchase of goods within the meaning of entry 54 of List II.

16. It is only when Section 5-C of the Andhra Pradesh General Sales Tax Act was struck down by this court that the State Legislature has enacted Sections 30-A and 30-B by the Amending Act 5 of 1968. These provisions have been brought into effect from 1st July, 1968. It will immediately be seen that having found that it is not possible to enact a provision like Section 5-C, the State Legislature has now hit upon a device to first impose prohibition under Section 30-A against collection of any sum by way of tax in certain cases and then direct the forfeiture of such a sum if collected in contravention of Section 30-A. The question is whether such a provision falls within the legislative competence of the State Legislature. We are clear that the State Legislature is not competent to enact Section 30-B even in this form under entry 54 of List II. The reasons are the same as are given in the abovesaid three cases decided by this court and the Supreme Court and it is unnecessary to reiterate them. It is enough to say that it makes no difference whether the enactment directs the dealers to hand over the amount so collected to the State Government or directs forfeiture of the same to the State Government. In either case, it is not open to the State Legislature under its powers under entry 54 of List II to make a provision to the effect that money collected by way of tax, even though it is not due as a tax under the Act, shall either be made over to the State or shall be forfeited to the State Government.

17. The provision, however, is attempted to be justified on the ground that under the incidental or ancillary power to make law for the levy and collection of tax under entry 54, a provision like Section 30-B can be made.

18. Now it is trite to say that constitutional provisions are entitled to a liberal or generous interpretation and not to a 'strict' construction as may be applicable to statutes with particular objects. The principle that a large and liberal construction must be so put on legislative powers has been laid down in numerous cases. Because of this it is said that every Legislature has certain incidental and ancillary powers to make sure that legislation with respect to its enumerated powers may be effected. It is thus a fundamental principle of constitutional law that everything necessary to the exercise of the power is included in the grant of the power. The Constitution merely marks the outlines of the powers granted to the Legislature, but does not undertake, as a code of laws would, to enumerate the sub-divisions of those powers, or to specify all the means of executing them. Laws, therefore, which are necessary and proper or incidental to the execution of the power, are alike constitutional. Thus none of the entries in the Lists should be read in a narrow or pedantic sense. Each general word should be taken to extend to all ancillary, incidental and subsidiary matters which can fairly and reasonably be comprehended in it, and against which no express prohibition is found in the Constitution.

19. But it must be remembered that in the exercise of the incidental powers, the Legislatures may complement but certainly cannot supplement a grant of power. Such an incidental and ancillary power can only be exercised in aid of the main topic of the legislation. Therefore a power cannot be deduced as incidental or subsidiary unless it is indispensable for the carrying out of the express power granted by the constitutional provision.

20. Viewed in this background, can it be said that Section 30-B is an indispensable provision for carrying out the express power conferred by entry 54 Can it be argued that Section 30-B is enacted in aid of the main taxing Act Can it be legitimately urged that there is a necessary connection between the express power granted by entry 54 and the power to levy penalty and to forfeit the amount collected by way of tax now claimed under Section 30-B, so that: the latter power can properly be said to be incidental to the execution of the express power We do not think that Section 30-B can be supported on any one of such arguments. We are clear that the ambit of ancillary or incidental power cannot go to the extent of permitting the Legislature to provide that the amount collected-may be wrongly-by way of tax although not exigible under the law as made under entry 54 but shall still be forfeited as if it were a tax. Such a provision really supplements a grant of power rather than complement such grant of power under entry 54. Such a provision cannot, in our opinion, be treated as coming within the incidental or ancillary power which the State Legislature has got under the taxing entry 54 of List II. Under the said entry, the Legislature can only ensure that the tax is levied and collected and that its evasion becomes impossible. More cannot be read in entry 54 of List II.

21. This conclusion of ours is supported by the two following Supreme Court decisions to which we have already referred in another connection: Abdul Quader & Co. v. Sales Tax Officer [1964] 15 S.T.C. 403 (S.C.) and Ashoka Marketing Limited v. State of Bihar and Anr. Since reported at [1970] 26 S.T.C. 254 (S.C.), unreported judgment of the Supreme Court in C.A. No. 2004 of 1966 dated 30th January, 1970. We are therefore satisfied that the impugned provision cannot he sustained on the basis that such a provision can be made under the incidental or ancillary power which entry 54 of List II confers on the State Legislature.

22. The provision of Section 30-B is then sought to be supported on the ground that the State Legislature is empowered to declare the collection of any sum by way of tax which is not exigible under the Act, as an offence under entry 64 and directs confiscation or forfeiture of the amount so collected.

23. Now, entry 64 read with Article 246 undoubtedly empowers the State Government to enact a law relating to offence against laws with respect to any of the matters in List II. The exercise of such legislative power has necessarily to be connected with entry 54. It can be seen that each of the three Legislative Lists has an entry conferring power upon the different Legislatures to make offences for the violation of the laws respectively made by them. Entry 64 of List II is one such entry. Thus to make an act a penal offence is essentially an exercise of legislative power and if that power is to be exercised under entry 64, then it must be shown that the offence so made is again a law 'with respect to' taxes on the sale or purchase of goods coming within the ambit of entry 54. We must underscore the words with respect to appearing in entry 64. Similar expression is used in Article 246. It indicates the ambit of the power of the State Legislature to legislate as regards the subject-matter comprised in entry 54 of List II. These words clearly explain the nature of connection that must exist between a legislation and the subject-matter of an entry in the list, i.e., the legislative power under which and the subject matter on which the law purports to have been made. What must follow is that the power to make laws under entry 64 read with Article 246 of the Constitution, 'with respect to' taxes on the sale or purchase of goods referred to in entry 54, is a power to make laws and make offences which in reality and substance is a law upon the subject-matter of entry 54. It would not be enough that the law merely refers to that subject-matter or apply to that subject-matter or is incorporated in a law on that subject-matter. The Jaw must make an offence in relation to tax on purchase or sale of goods and in relation to nothing else because it will be beyond the scope of entry 54.

24. In determining whether an enactment, is a legislation 'with respect to' a given power, what is relevant is not the consequences of the enactment on the subject-matter or whether it affects it, but whether in its substance it is a law upon the subject-matter in question. If applying the principles of 'pith and substance' it is found that an enactment is with respect to legislative entry in question or the subject-matter referred to in such an entry, then the power would be unfettered, unless of course there are constitutional prohibitions. On the other hand, if in substance it is found not to be a law on the subject-matter, then it. should not be difficult to hold that the Legislature lacked competence to enact such a law. In determining this question it is true one has to necessarily keep in view not only the power expressly granted by the entry but keep in view the fact that such a power is extended to ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in that topic or category of legislation.

25. If we examine Section 30-B in the light of what is stated above, it becomes plain that the prohibition imposed in Section 30-A or direction to recover a penalty or forfeiture of any amount collected in contravention of Section 30-A cannot be said to be a legislation on tax on sale or purchase of goods within the meaning of entry 54. We have already held that the validity of these provisions cannot be supported under entry 54 either on the basis of express grant of power to legislate or on the ground of ancillary or incidental power to enact. When once that is found, then what must follow is that any law made under entry 64 which does not satisfy the requirements of entry 54 is not a law with respect to the subject-matter enumerated in entry 54 but a law which falls outside that entiy and consequently the State Legislature is not competent to impose any prohibition or make an act contravening such a provision an offence as is attempted in Section 30-A or Section 30-B. Nor can it direct forfeiture of such an amount which does not come within the purview of entry 54.

26. Moreover, the Legislature under the guise, pretence or in the form of exercise of its own power cannot carry out an object which is beyond its powers. It must be borne in mind that what the Legislature could not do directly, it is not permissible for it to do indirectly. If we examine with strictness the substance of the present legislation, that is to say, Sections 30-A and 30-B and that of Section 5-C which was struck down by this court, it will immediately be plain that what was found by this court as bad has now been put in another form. The court in such cases would not be over-persuaded by the mere appearance of the legislation. In all such cases, the court is entitled to look behind the names, forms and appearances to discover the true character and nature of the impugned legislation. In both these legislations, the attempt was to enact as if it is a law made under entry 54 read with entry 64 which in reality it is not. The argument must therefore fail on this account also.

27. Reliance in this connection was placed on the following observation made by the Supreme Court in Abdul Quader & Co. v. Sales Tax Officer [1964] 15 S.T.C. 403 (S.C.):

It does not provide for a penalty for collecting the amount wrongly by way of tax from purchasers which may have been justified as a penalty for the purpose of carrying out the objects of the taxing legislation.

28. If read out of context, this observation is likely to give an impression that if Section 11 of the Hyderabad General Sales Tax Act had provided for a penalty, the Supreme. Court may have upheld the validity of such a provision on the ground that such a law can be made on the basis of ancillary powers. We do not, however, think that the Supreme Court had anything of that kind in their mind. That question was not before the Supreme Court at all. That this is so can be seen from the observation which immediately follows the one extracted above, It reads ;

If a dealer has collected anything from a purchaser which is not authorised by the taxing law, that is a matter between him and the purchaser, and the purchaser may be entitled to recover the amount from the dealer. But unless the money so collected is due as a tax, the State cannot by law make it recoverable simply because it has been wrongly collected by the dealer. This cannot be done directly for it is not a tax at all within the meaning of entry 54 of List II, nor can the State Legislature under the guise of incidental or ancillary power do indirectly what it cannot do directly.

29. The result of the foregoing is that Section 30-B(1)(a), the provision of penalty relating thereto, and the last line of the operating clause which appears after Clause (b) and which reads as under :

and in addition, in the case of contravention referred to in Clause (a), any sum so collected shall be forfeited to the State Government

are ultra vires of the Constitution inasmuch as the State Legislature was not competent to enact any such provisions of law under entries 54 and 64 read with Article 246 of the Constitution. On parity of reasons and the reasons which we are giving below, Section 30-A will also have to be found as ultra vires of the Constitution.

30. The next question, which immediately arises for our consideration, is whether the rest of Section 30-B, which has not been attacked as invalid, can be separated from the provisions of Section 30-B which are found to be invalid.

31. Now it is common experience that the validity of statutes is constantly challenged in these days. With the field of legislative activity rapidly expanding in all departments of national life and the speed with which the laws are made, many enactments must contain elements, the validity of which is at least questionable. Although it is claimed that increasing care is exercised, poor draftsmanship is yet quite common. In order, however, that the work of the Legislature and the huge amount involved in making the laws should not be wasted and their calendars further unduly clogged with Acts up for re-passage, the courts have been increasingly relying upon the principle of severance and the tendency in that behalf is to adopt liberality in applying the, principle of severance.

32. A single statute or even a single section may be partially valid and partially invalid. Whether or not the judicial determination of partial invalidity will so disembowel the legislation that it must fall as a whole or whether the valid portion will be enforced separately has always been treated as a question of importance second only to the initial determination of validity.

33. In America, insertion of a separability clause in an enactment has become a common feature. Unfortunately, in India, this device is not so far employed by the Legislature. The effect of a separability clause in an enactment is to replace a presumption, that the statute was meant to be indivisible by a presumption in favour of separability. This latter presumption is required to be overcome by proof of considerations making evident the inseparability of the statute.

34. It has not been the practice in India as stated above to enact clauses of inseparability either in individual Acts or in the Central and State General Clauses Acts. In the absence of any such clause in the Indian enactments, the usual tools of interpretation of statutes have to be necessarily employed with a view to find out the intention of the Legislature. This becomes more necessary because of Clauses (1) and (2) of Article 13 of the Constitution which provide as to contravention of fundamental right and Clause (1) of Article 254 which points out the effect when a State law is repugnant to a law of Parliament in the concurrent sphere. In either case, the Constitution enjoins that the offending law shall be void 'to the extent of the 'repugnancy', 'inconsistency' or 'contravention' '. The same principle is applicable to cases where on the basis of legislative incompetence a law has been found to be partly valid and partly invalid. This means that when some provision of law is held to be unconstitutional, whatever may be the ground, only the offending provisions of the law in question shall be treated by the court as void and not the whole statute. Such conclusion evidently can be arrived at after applying the doctrine of severability.

35. In determining the separability of a statute, the ultimate decision, as seen above, will rest upon judicial determination of legislative intent. The problem is twofold. The Legislature must have intended that the Act be separable and that the Act must be capable of separation in fact. Thus where the Act or a section is such as to warrant the belief that the Legislature would not. have passed the Act or the section without the invalid parts, the whole Act or the section must be held inoperative. If it is found that all the provisions are connected in subject-matter, dependent on each other, operating together for the same purpose or otherwise so connected in any manner that if it cannot be presumed that the Legislature would have passed the one without the other, the whole thing must go as invalid. That this is so is seen from R. M. D. Chamarbaugwalla v. Union of India A.I.R. 1957 S.C. 628, where Venkatarama Ayyar, J., laid down several tests in this behalf. The real test therefore is whether or not the Legislature would have passed the statute or the section had it been presented with the invalid features removed

36. If we examine Section 30-B in this background, it will immediately be clear that the purpose of Sections 30-A and 30-B would be defeated if only the valid parts, i.e., Section 30-A and part of Section 30-B relating to the violation of Section 25, are allowed to continue. We have already seen that what all remains as valid in Section 30-B is the law relating to -the violation of the provisions of Section 25 of the Act. It is true that if a' statute has two or more objects and is valid as applied to one but invalid as applied to another, the statute may be upheld in its valid aspect but will be condemned in so far as it is invalid. But it can hardly be doubted that after Section 5-C of the Andhra Pradesh General Sales Tax Act was struck down by this court, the Legislature in one unified and integrated scheme introduced Sections 30 A and 30-B in the Act. The main object of the scheme obviously is to get at the money which the dealers have collected or may collect by way of taxes though they are not liable to pay any such taxes. Thus the object being single and indivisible and the two sections having been inserted in a combined scheme there can be little difficulty in holding that the Legislature would not have merely passed the valid part if they were told that the invalid parts have to be removed. We are therefore clear, in our view, that since the amending Act, which introduced Sections 30-A and 30-B was designed to accomplish a single purpose and object, and since we have found Section 30-B invalid in parts and since the valid part of Section 30-B is integrally connected with its invalid part, not only Section 30-B is invalid in toto but Section 30-A would have to be declared invalid on the ground that it is also part of the same scheme and was designed to serve the same purpose and is inextricably mixed up with the invalid part of Section 30-B. The valid parts alone cannot be said to be sufficient to accomplish the legislative purpose. When it becomes clear that the purpose of these sections would be defeated by the invalidity of their parts, both sections become void.

37. Since the validity of the impugned provisions have not been sought to be supported on any other ground and for the foregoing reasons, we hold that Sections 30-A and 30-B are invalid in toto and are ultra vires of the Constitution and therefore are void. As the respondents are trying to enforce these sections in proceedings initiated against the petitioners, the writs of prohibition as asked for by the petitioners will have to be issued.

38. The writ petitions are accordingly allowed. The petitioners shall get their costs. Advocate's fee Rs. 50 in each case.


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