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H.P. Nanda Vs. Union of India Etc. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 745D of 1963
Judge
Reported inILR1970Delhi656
ActsGift-tax Act, 1958; Constitution of India - Article 248
AppellantH.P. Nanda
RespondentUnion of India Etc.
Advocates: N.D. Karkhami,; A.N. Kirpal and; D.K. Kapur, Advs
Excerpt:
.....parliament to make any law with respect to any matter nto enumerated in the concurrent list or the state list. in its true sense that article declares that unless and until specific power is shown to be conferred through the concurrent list or the state list, it is the parliament alone which has competence to legislate in respect of any matter. if there is no specific item in the concurrent list or the state list, then the power exclusively remains with the parliament to legislate in the wider field and nothing else can touch it. ; that the words 'any tax nto mentioned in either of those lists' are very forceful in their meaning and content. those words permit only one interpretation and that is that if lists ii or iii do nto contain the specific power for enacting law in respect of a..........to make the enactment in respect of any kind of taxation. (7) if a reference is made to the state list, i.e., list ii in the seventh schedule it would be obvious that there also the constituent assembly specifically described the type of taxes regarding which the state legislatures could legislate. items 46,49,50,52 to 58,60 and 62 in the state. list enumerate the type of taxes in respect of which the state legislatures can legislate. but there is no entry like entry no. 97 in the state list. a mere persual of the two lists answers the contentions which are raised. my lord justice h. r. khanna, as he then was, while delivering judgment in mst. gaindi's case noticed all the relevant cases decided till that time and his lordship rightly held that entry no. 97 contained in the union.....
Judgment:

P.S. Safeer, J.

(1) This petition was filed by Shri H. P. Nanda seeking a writ or order or direction in the nature of certiorari for the quashing of the assessment order dated 31st July, 1962. The said order was confirmed on appeal by an order dated 10th July, 1963.

(2) There are two aspects of the matter which the petitioner agitates. The first is that he made a declaration in respect of certain shares owned by him and through that declaration he threw those shares into the hotch pto of his Hindu Undivided Family. The declaration as contained in paragraph 2 of the writ petition is as under :-

'I,Har Parshad Nanda, aforesaid have two minor sons, Rajan Parshad Nanda and Anil Nanda of the ages 17 and 7 respectively. I am the father and natural guardian of my two sons aforesaid and myself and my sons are living together as members of a Hindu Undivided Family. I hereby declare that the shares described hereunder belong to and shall be enjoyed by the Hindu Undivided Family consisting of myself and my two undivided minor sons aforesaid as members of the Joint Family. The undermentioned shares shall hereinafter be dealt with by myself and my undivided minor sons aforesaid as the properties of the Joint Family consisting of myself and my undivided sons. The dividends payable on such shares shall also belong to and be enjoyed by the Joint Hindu Family consisting of myself and my undivided sons aforesaid.'

(3) The counsel for the petitioner contends that the aforestated declaration did nto constitute a gift. The other point raised is that in view of the provisions contained in section 5(1)(vii) of the Gift Tax Act of 1958, the amount gifted by the petitioner to his mother was nto chargeable to tax.

(4) The above contentions, however, do nto call for determination at this stage. We understand that the petitioner has an appeal pending before the appropriate authority. He will be well advissed if he raises the foregoing contentions before that authority. If we record any findings at this stage then he may be prejudiced.

(5) The learned counsel for the petitioner has contended that the Gift Tax Act of 1958 is ultra-vires of the Constitution because it was nto within the competence of the Parliament to enact the same. The submission made by him are similar to those which were dealt with by my Lord Justice H.R. Khanna, as he then was, in the case reported as . Be- fore making a detailed reference to that case it would be appropriate if the argument presented at the bar is precisely noticed. The learned counsel for the petitioner has contended that there is no item in the Union List known as List No. 1 in the Seventh Schedule of the Constitution of India under which the Parliament could have competently enacted the aforestated Act. On that ground it is urged that the legislative powers of the Parliament could nto be exercised so as to invade the orbit of the legislative powers left to the State legislatures. It was put to the learned counsel as to which was the item in List Ii which confined the power to legislate regarding the tax on gifts to the State legislatures. He is unable to point out any such provisions.

(6) It is very significant that while enacting the items in the two lists the Constituent Assembly paid very special attention to the powers which were to be given to the various legislatures regarding the enactment of laws in respect of taxation. It is obvious. from entries 82, 85, 86, 89, 90, 92 and 92(a) contained in the Union List that the powers of the Parliament were consciously enumerated in respect of some specific items. It is, however, remarkable that while enacting the very last entry, that is, entry No. 97 in the Union List it was considered necessary that the residuary power to make laws in respect of any kind of tax nto mentioned in either List Ii or Iii would remain with the Parliament. Entry No. 97 is, thereforee, the entry which always calls for attention whenever there is any doubt regarding the competence of either the Parliament or the State legislatures to make the enactment in respect of any kind of taxation.

(7) If a reference is made to the State List, i.e., List Ii in the Seventh schedule it would be obvious that there also the Constituent Assembly specifically described the type of taxes regarding which the State Legislatures could legislate. Items 46,49,50,52 to 58,60 and 62 in the State. List enumerate the type of taxes in respect of which the State Legislatures can legislate. But there is no entry like entry No. 97 in the State List. A mere persual of the two Lists answers the contentions which are raised. My Lord Justice H. R. Khanna, as he then was, while delivering judgment in Mst. Gaindi's case noticed all the relevant cases decided till that time and his Lordship rightly held that entry No. 97 contained in the Union List gave power to the Parliament to make law in respect of taxation on gifts and that the Gift tax Act had been validly enacted by the Parliament. It was clearly held that Article 248 of the Constitution of India expressly reserved the exclusive power to the Parliament to make any law with respect to any matter nto enumerated in the Concurrent List or the State List. By sub-article (2) of Article 248 the power to make laws for imposition of taxes was declaredly kept intact with the Parliament.

(8) The judgment referred to above was relied upon by a Division Bench of the Allahabad High Court in the case cited as 66 Income Tax Reports, page 75. The learned Judges, there, held that a tax on lands and buildings was distinctly different from tax on gift of lands and buildings with the result that the legislation in respect of the latter does nto fall under entry 49 in List Ii of the Seventh Schedule of the Constitution and that the impugned Act was validly passed by Parliament by virtue of Article 248 of the Constitution of In dia read with entry 97 in List I of the Seventh Schedule. The learned judges in the Division Bench also clearly said that they were taking support from Mst. Gaindi's case and several other cases which they mentioned. The only other case decided after Mst. Gaindi's case which has been cited at the bar is reported in 70 Income Tax Reports at page 812. The judgment comes from the Andhra Pradesh High Court. There also it was a Division Bench which considered the law available on the point. As before us in the present petition reliance was placed on Entry No. 49 in List Ii and it was urged that only the State Legislature was competent to legislate in respect of taxation on gifts and that there was no power which remained with the Parliament to enact the impugned Act. The Andhra Pradesh High Court has also discussed the provisions of Article 248 as well as entry No. 97 in the Union List. As has been said earlier Article 248 preserves the exclusive power of the Parliament to make any law with respect- to any matter nto enumerated in the Concurrent List or the State List. In its true sense that Article declares that unless and until specific, power is shown to be conferred through the Concurrent List or the State List it is the Parliament alone which has competence to legislate in respect of any matter. If there is no specific item in the Concurrent List or the State List it is the Parliament alone which has competence to legislate in respect of any matter. If there is no specific item in the Concurrent List or the State List then the Power exclusively remains with the Parliament to legislate in the wider field and nothing else can touch it. Item No. 97 in the Union List is in the following terms :

'97.Any other matter nto enumerated in List Ii or List Iii including any Tax nto mentioned in either of those Lists.'

(9) The words 'any tax nto mentioned in either offhose Lists' are very forceful in their meaning and content. Those words permit only one interpretation and that is that if Lists Ii or Iii do nto contain the specific power for enacting law in respect of a particular type of taxation then the Parliament alone can enact the law which may be needed for purposes of regulating the taxation in any particular respect. The scope of taxation in respect of gifts is referable to Article 248 of the Constitution of India read with entry No. 97 mentioned above.

(10) We, thereforee, hold that the Gift Tax Act of 1958 has been validly enacted by the Indian Parliament. We are nto persuaded to make any observations on other aspects of the case because the petitioner has an appeal pending before the appropriate authority before whom he will he at liberty to raise the contentions which may be open to him. So far as this petition is concerned it fails and is dismissed but in the circumstances of the case their will be no order as to costs.


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