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PETITIONER: K.M. MOHAMAD ABDUL KHADER FIRM

       Vs.

RESPONDENT: STATE OF TAMIL NADU & ORS.

DATE OF JUDGMENT16/10/1984

BENCH: ERADI, V. BALAKRISHNA (J) BENCH: ERADI, V. BALAKRISHNA (J) TULZAPURKAR, V.D. MADON, D.P.

CITATION:  1985 AIR   12            1985 SCR  (1) 980  1984 SCC  Supl.  563     1984 SCALE  (2)621

ACT:      Tamil Nadu  Additional Sales Tax Act, (Act II of 1976)- Legislative competence to levy Additional Tax in addition to the collection  of surcharge  under the Tamil nadu Sales Tax (Surcharge) Act,  1971-Whether  the  levy  of  graded  rates violates Article  14 of the Constitution-Whether the levy of Additional Tax itself is violative of Articles 19 and 301 of the Constitution since it prohibits passing of the incidence of taxation  to the  consumer of goods-Constitution of India 1950 Article 14, 19 and 301

HEADNOTE:      In Tamil Nadu the levy of the Sales Tax is regulated by the Tamil Nadu General Sales Tax Act, 1959. In the year 1970 the State  Legislature enacted  the  Tamil  Nadu  Additional Sales Tax  Act, (Act  XIV of  1970) with effect from May 28, 1970. The  scheme of  section 2  of the  Act was to levy the Additional Tax  by the process of increasing the tax payable under the  Act of  1959 by  10  percent  the  said  increase representing the  quantum of the Additional Tax. The proviso to  Section  stipulates  for  a  concessional  treatment  in respect of  the declared goods. In September, 1971 the State Legislature enacted  the Tamil  Nadu Sales  Tax  (Surcharge) Act, 1971.  with retrospective effect from June, 1971. Under Section 3  of that  Act every dealer liable to pay tax under the Act  of 1959 was subjected to a further liability to pay surcharge at the rate of 5 per cent of such tax. In 1976 the Tamil Nadu  Additional Sales Tax (Act II) of 1976 was passed amending and  substituting Section  2  of  the  earlier  Act providing for graded rates with a super added condition that the Additional  Tax payable  cannot be  collected  from  the consumers, a  contravention of  which  would  attract  penal action. On  receipt of  notices of  demand issued consequent upon the  assessment  to  Additional  Sales  Tax  under  the provisions of  the Section  as amended  by the  1976 Act the petitioners have  come  up  to  the  Court  challenging  the constitutional validity  of the  Act, 1976  and  seeking  to quash the assessment orders and the notices of demand issued to them.      Dismissing the Writ Petitions, the Court ^

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    HELD: 1-  The contentions that the amended Section 2 of the Tamil  Nadu Additional Sales Tax Act 2 of 1976 is devoid of legislative competence in as much as it imposes not a tax on sales but a tax on income, that the adoption 981 of slab system for determining tax liability is alien to the concept of  Sales Tax  that the levy of Additional Tax under the impugned  enactment violates  Articles 14  and 19 of the Constitution  and   that  the  provisions  of  the  Act  are violative of Article 301 of the Constitution are all totally devoid of merit. [991C-D]      M/s Pharma  Associates and  others v.  State of  Bihar, [1983] 4  S.C.C. 45:  S. Kodar  v. State  of Kerala [1975] 1 S.C.R. 121 followed.      2.  The   constitutional  validity   of  the   levy  of Additional Tax  is not  in any manner affected by the change brought about  in the  mode of  levy and  as a result of the amendments  effected  by  the  impugned  Act.  The  impugned enactment has  merely amended  the  1970  Act.  It  has  not introduced a  new tax; what it has done is only to amend the 1970 Act by providing for different method of computation of the Additional  Tax leviable  under that  Act by linking the rate of  levy to  the taxable  turnover instead  or  to  the amount of tax assessed under the Act of 1959. The nature and identity of the Additional Sales Tax imposed by the 1970 Act have not  been in  any way  altered  by  the  impugned  Act. [985F;C;E;D]      S. Kodar  v. State  of  Kerala,  [1975]  1  S.C.R.  121 referred to.

JUDGMENT:      ORIGINAL JURISDICTION:  Writ Petition (Civil) Nos. 4358 of 1978, 212-213, 760 of 1979 and 6449 of 1980.      Under article 32 of the Constitution of India      S.N. Kacker  and A.T.M.  Sampath for  the Petitioner in W.P. Nos. 212-213 of 1980.      A.K. Sen,  A.T.M. Sampath  and P.N.  Ramalingam for the Petitioner in W.P. No. 760 of 1979.      A.T.M. Sampath  and P.N.  Ramalingam for the Petitioner in W.P. Nos. 4358 of 1978 and 6449 of 1980.      S.T. Desai and A.V. Rangam for the Respondent.      The Judgment of the Court was delivered by      BALAKRISHNA ERADI,  J. in  these  Writ  Petitions,  the petitioners have  challenged the  constitutional validity of the provisions  of Tamil  Nadu Additional Sales Tax Act 1976 (Act 2 of 1976). By the said Act section 2 of the Tamil Nadu Additional Sales Tax Act, 1970 was amended by substituting a new provision in the place of what existed before, section 3 was omitted  and section 3A was newly introduced to the Act. As the  points  raised  in  all  these  Writ  Petitions  are identical, they  were heard  together and are disposed of by this common judgment. 982      Before we  proceed to  set out  the provisions  of  the impugned Act,  it is  necessary  to  narrate  in  brief  the legislative history  that preceded  its enactment. The basic statute providing  for the levy of Sales tax in the State of Tamil Nadu  is the  Tamil Nadu  General Sales  Tax Act, 1959 (hereinafter referred  to as  "the Act of 1959") In the year 1970,  the   State  Legislature   enacted  the   Tamil  Nadu Additional Sales  Tax Act-Act 14 of 1970 (hereinafter called the 1970  Act)-which was brought into force with effect from May 28,  1970. The  said Act  provides for  the levy  of  an

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additional tax  on the  sale or purchase of goods. Section 2 of the  Act  which  is  the  charging  section  was  in  the following terms:-           "2. Levy  of additional tax in the case of certain      dealers:-(1) The  tax  payable  under  the  Tamil  Nadu      General Sales  Tax Act,  1959 (Tamil  Nadu Act of 1959)      (thereafter in  this section  referred to  as the  said      Act), shall  in  the  case  of  a  dealer  whose  total      turnover for  a year  exceeds ten  lakhs of  rupees, be      increased by  an additional tax at the rate of (ten per      cent) of  the tax  payable by that dealer for that year      and the  provision of  the  said  Act  shall  apply  in      relation to  the said  additional tax  as they apply in      relation to the said tax payable under the said Act.           Provided that  where in  respect of declared goods      as defending clause (h) of section of the said Act, the      tax payable  by such dealer under the said Act together      with the additional tax payable under this sub-section,      exceeds (four  percent) of  the sale  or purchase price      thereof, the  rate of additional tax in respect of such      goods shall  be reduced  to such an extent that the tax      and the  additional tax together shall not exceed (four      per cent) of the sale or purchase price of such goods."      It will  be noticed that the scheme of this section was to levy  the additional tax by the process of increasing the tax payable  under the  Act of 1959 by ten per cent the said increase representing the quantum of the additional tax. The proviso  to   the  section  stipulates  for  a  concessional treatment  in   respect  of   the  declared   goods.  It  is unnecessary for  us to  deal with  the said  proviso or with section 3  of the  said Act  as  these  provisions  have  no relevance to  the determination  of the  point raised in the cases now before us. 983      In September,  1971, the  State Legislature enacted the Tamil  Nadu   Sales   Tax   (Surcharge)   Act,   1971   with retrospective effect  from June,  1971. Under  section 3  of that Act,  every dealer  liable to  pay tax under the Act of 1959 was subjected to a further liability to pay a surcharge at the  rate of five per cent of such tax. The first proviso to the  said section  states that  in the city of Madras the rate of  surcharge shall  be ten  per cent  for  the  period commencing on the June 19, 1971 and ending with the June 28, 1971. The second proviso extended certain concessions in the rate of surcharge in respect of declared goods.      Thereafter followed  the impugned  statute namely,  the Tamil Nadu  Additional Sales  Tax (Act 2) of 1976, which was brought into  force with  effect from 1.4.1976. Section 2 of the said  Act amended section 2 of the Tamil Nadu Additional Sales Tax  Act, 1970 by substituting the following provision in replacement of the original section:      "2.  Levy of  additional tax  in the  case  of  certain           dealers-      1.   (a) The  tax payable  under the Tamil Nadu General           Sales Tax  Act, 1959  (Tamil Nadu  Act I  of 1959)           (hereinafter in  this section  referred to  as the           said Act),  shall, in  the case  of a dealer whose           taxable turnover for a year exceeds three lakhs of           rupees,  be   increased  by   an  additional   tax           calculated at the following rates, namely:-                         Rate of tax      (i)  Where the  taxable turnover  exceeds  0.4 per cent           of three  lakhs of  rupees but  does   the taxable           not exceed five lakhs of rupees.    turnover.      (ii) Where  the taxable  turnover exceeds   0.5 percent

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         five lakhs  of rupees  but does  not   of the tax-           exceed seven lakhs of rupees.       able turnover.      (iii)Where the  taxable turnover  exceeds   0.6 percent           seven lakhs  of  rupees  but  does  not    of  the           exceed ten  lakhs of  rupees.              taxable                                               turnover.      (iv) Where  the taxable  turnover exceeds   0.7 percent           ten lakhs of rupees                 of the taxable                                               turnover. 984           Provided that  where in  respect of declared goods           as defined  in clause (h) of section 2 of the said           Act, the  tax payable  by such  dealer under  this           said Act, together with the additional tax payable           under this  sub section,  exceeds four per cent of           the sale  or purchase  price thereof,  the rate of           additional tax  in respect  of such goods shall be           reduced to  such an  extent that  the tax  and the           additional tax  together shall not exceed four per           cent of the sale or purchase price of such goods.           (b) The  provisions of the said Act Shall apply in           relation  to  the  additional  tax  payable  under           clause (a)  as they  apply in  relation to the tax           payable under the said Act.      (2)  Notwithstanding anything contained in the said Act           no dealer  referred to in sub-section (1) shall be           entitled to  collect the  additional  tax  payable           under the said sub-section.      (3)  Any dealer who collects the additional tax payable           under sub-section  (1)  in  contravention  of  the           provisions of  sub-section (2) shall be punishable           with fine which may extend to one thousand rupees,           and no  Court  below  the  rank  of  a  Presidency           Magistrate or  a Magistrate  of  the  First  Class           shall try any such offence."      While under  the provisions  of section 2 as they stood prior to  the amendment,  the additional sales tax was to be calculated and  levied at  a certain  percentage of  the tax assessed on  the dealer under the Act of 1959, the scheme of the amended  section is to adopt the taxable turnover of the dealer as  the base  for the levy of the additional tax, the rate or  percentage to  be applied  for calculation  of  the additional tax  depending upon  the quantum  of the  taxable turnover and  the slab  into which  the case of a particular dealer will  fall on  the basis  of the specification of the slab limits indicated in the section.      On receipt  of notices of demand issued consequent upon assessments to  additional sales tax under the provisions of the section  as amended  by the impugned Act the petitioners have 985 come  up   to  this  Court  challenging  the  constitutional validity of  the impugned  Act of  1976 and seeking to quash the assessment  orders and  the notices  of demand issued to them.      The first contention urged on behalf of the petitioners is that since the State Legislature had already provided for the levy  of a  tax on sales by the Act of 1959 and had also enacted  a   further  statute   authorising  the   levy  and collection of  a surcharge  which is  in truth and substance the imposition  of an  additional sales  tax, it  could  not legally go on legislating further enactments providing again for levy  of additional  sales tax.  On  this  basis  it  is contended that  the provisions of the impugned Act, 1976 are ultra vires  and devoid of legislative competence. We see no

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substance in  this contention.  The impugned  enactment  has merely amended  the 1970  Act. It  has not  introduced a new tax; what  it has  done is  only to  amend the  1970 Act  by providing for  a different  method  of  computation  of  the additional tax  leviable under that Act. The validity of the 1970 Act  has been  upheld by  a Constitution  Bench of this Court in  the case  of S.  Kodar v.  State of  Kerala. Hence there is  no longer any scope for the petitioners to contend that the  State Legislature had no competence to provide for the levy of additional sales tax. The nature and identity of the additional  sales tax  imposed by  the 1970 Act have not been in  any way  altered by  the impugned  Act. As  already pointed out  what has  been done by the impugned Act is only to provide  for a  different  mode  of  computation  of  the additional sales  tax by  linking the  rate of  levy to  the taxable turnover  instead of  to the  amount of tax assessed under the  Act of  1959. The  constitutional validity of the levy of  additional tax is not in any manner affected by the said  change   brought  about   in  the  mode  of  levy  and computation as  a result  of the  amendments affected by the impugned Act.      It was  strongly contended on behalf of the petitioners that the prescription of different rates of additional sales tax depending  upon the quantum of turnover of the different assessees is totally repugnant to the concept of levy of tax on sales.  Another argument  advanced  by  Counsel  for  the petitioners was  that since  under the amended provisions of section 2,  two dealers  selling the  same commodity will be liable to  pay additional  tax at  different rates depending upon their  respective annual  turnovers, there  is a  clear violation of  Article 14  of the  Constitution as dissimilar treatment similarly situated. A further contention 986 urged on  behalf of the petitioners was that the levy in its present from is really a tax on ’gross income’ and not a tax on ’sales’ and hence it is ultra vires the State Legislature as it  has no  competence to levy a tax on income other than agriculture income.  Another ground  of  attack  pressed  by Counsel was  that the levy of additional sales tax under the impugned Act  is confiscatory  in  nature,  that  it  impose unreasonable restrictions  on the petitioners right to carry on business  and offends  Article 19  of  the  Constitution, particularly in  view of  the prohibition  contained in sub- section (2)  of section  2 against  collection of additional tax from  the consumers. Yet another point taken in the Writ Petitions but  not very  seriously  urged  at  the  time  of hearing is  that  the  levy  of  additional  tax  under  the impugned Act  offends Article  301 of the Constitution since the imposition  of the  additional liability would seriously affect the  business of  the petitioners  and on  account of their inability  to bear  the heavy  burden their  right  to carry on  freely trade,  commerce and intercourse within the territory of India will be adversely affected.      We are  spared the necessity of dealing with any of the aforesaid points  in depth because everyone of them is fully covered by  pronouncement of  a Constitution  Bench of  this Court in S. Kodar v. State of Kerala afore-cited.      The contention  that the  additional sales  tax  levied under the  Tamil Nadu Additional Sales Tax Act, 1970 was not a tax on sales but was in reality a tax on the income of the dealers  was   rejected  by  the  Constitution  Bench  which observed thus:           "  As   regards  the  contention  that  the  State      Legislature has  no power  to pass the measures, we are      of the  view that additional tax is really a tax on the

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    sale of  goods. The object of the Act, as is clear from      its provisions,  is to  increase the tax on the sale or      purchase of  goods imposed  by Tamil Nadu General Sales      Tax  Act,  1959  and  the  fact  that  quantum  of  the      additional tax  is determined  with  reference  to  the      sales tax  imposed would not alter its character it may      be noted  that additional  tax is to be imposed only if      the turnover of a dealer exceeds Rs. 10 lakhs. It is in      reality a  tax on  the aggregate of sales effected by a      dealer during a year. The additional tax, there- 987      fore, is  an enhancement  in the  rate of the sales tax      when the  turnover of  a dealer  exceeds Rs. 10 lakhs a      year and  it is  a tax  on the  aggregate of  the sales      affected by the dealer during the year. The decision in      Ernakulam Radio  Company v.  State of  Kerala which was      affirmed by  a Division  Bench of the Kerala High Court      in Kiliker  v. Sales  Tax Officer  took that  view. The      same view was taken by the Andhra Pradesh High Court in      A.S. Ramachandra Rao v. State of Andra Pradesh. This is      the correct  view. Entry  54 in  List II authorises the      state legislature  to impose  a  tax  on  the  sale  or      purchase of goods. So, the contention of the appellants      that the additional sales tax is not a tax on sales but      on the income of the dealer is without any basis.      The further  plea that  the levy of additional tax also was confiscatory  in  nature  and  the  prohibition  against passing on  the burden  to the consumers was an unreasonable restriction was also negatived by this Court by stating:-           "As  regards   the  second   contention  that  the      provisions of  the Act are violative of the fundamental      rights of  the appellants  under article 19 (1) (f) and      19 (1) (g), as the tax is upon the sale of goods and is      not shown  to be  confiscatory, it  cannot be said that      the provisions  of  the  Act  impose  any  unreasonable      restrictions upon  the appellants’  right to  carry  on      trade. It  is, no  doubt, true  that every  tax imposes      some restriction upon the right to carry on a business;      but it  would not follow that the imposition of the tax      in question  is an  unreasonable restriction  upon  the      appellants  fundamental   right  to   carry  on  trade.      Generally speaking,  the amount  or rate  of a tax is a      matter exclusively  within the legislative judgment and      as long  as a tax retains its avowed character and does      not confiscate property to the State under the guise of      tax, its reasonableness is outside the judicial ken.           But  it  was  contended  that  as  the  dealer  is      prohibited from  passing on the incidence of tax to the      purchaser, 988      the additional  tax, unlike  sales tax,  is  a  tax  on      income of the dealer which he must pay whether he makes      any pro  fit or  not and is, therefore, an unreasonable      restriction on  his fundamental rights under article 19      (1) (g).           The legal  incidence of tax on sale of goods under      the Tamil  Nadu General  Sales Tax, 1959 falls squarely      on the dealer. It may be that he can add the tax to the      price of  the goods  sold and  thus pass  it on  to the      purchaser. But  it is  not necessary  that  the  dealer      should be  enabled to  pass on the incidence of the tax      on sale  to the  purchaser in  order that it might be a      tax on sales of goods.           In J.  K. lute  Mills Co.  v. State  of U.P.  this      Court said,  although it  is true  that sales  tax  is,

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    according to accepted notions, intended to be passed on      to the buyer, and provisions authorising and regulating      the collection  of sales  tax by  the seller  from  the      purchaser are a usual feature of sales tax legislation,      it is  not an  essential characteristic  of a sales tax      that the  seller must  have the  right to pass it on to      the consumer,  not is  the power  of the legislature to      impose a  tax on  sales conditional  on  its  making  a      provision for  sellers to  collect  the  tax  from  the      purchasers.           In Konduri  Buchirajalingam v.  State of Hyderabad      this Court said:           "It is then said that the sales tax is essentially      an indirect  tax and therefore it cannot be demanded of      the appellant without allowing him to recoup himself by      collecting the  amount of the tax from the persons with      whom he  deals. This  Court has  already decided in the      case of  Tata Iron  and Steel  Co. Limited  v. State of      Bihar (1958)  9 S.T.C. 267 that in law a sales tax need      not be  an indirect  tax and  that a tax can be a sales      tax though  the primary  liability for it is put upon a      person without  giving him  any  power  to  recoup  the      amount of the tax pay able, from any other party." 989           As we said, the additional tax is a tax upon sales      of goods  and not  upon the  income of  a dealer and so      long  as   it  is   not  made   out  that  the  tax  is      confiscatory,  it   is  not   possible  to  accept  the      contention that  because the  dealer is  disabled  from      passing on  the incidence  of tax to the purchaser, the      provisions  of   the  Act   impose  an   unreason  able      restriction  upon   the  fundamental   rights  of   the      appellants under article 19 (1) (g) or 19 (1) (f).      Dealing with  the contention  that since the provisions of the  Act imposed  different rates  of  tax  on  different dealers depending  upon their turnover there was a violation of Article  14 of  the Constitution, Mathew J. who spoke for the Court observed:           "The last contention namely that the provisions of      the Act  impose different  rates of  tax upon different      dealers depending  upon their  turnover which in effect      means that  the rate  of tax on the sale of goods would      vary with  the volume  of the  turnover of a dealer and      are, therefore, violative of article 14 is also without      any basis.  Classification of  dealers on  the basis of      their respective  turnover for  the purpose  of  graded      imposition so  long as  it  is  based  on  differential      criteria relevant  to  the  legislative  object  to  be      achieved is  not  unconstitutional.  A  classification,      depending upon  the quantum of turnover for the purpose      of exemption  from  tax  has  been  upheld  in  several      decided cases.  By parity  of reasoning, it can be said      that a  legislative classification making the burden of      the tax  heavier  in  proportion  to  the  increase  in      turnover would be reasonable. The basis is that just as      in taxes  upon income  or upon  transfers at  death, so      also in  imposts upon  business,  the  little  man,  by      reason of  inferior capacity  to  pay,  should  bear  a      lighter  load   of  taxes,   relatively  as   well   as      absolutely, than is borne by the big one. The flat rate      is thought  to be less efficient than the graded one as      an instrument  of  social  justice.  The  large  dealer      occupies a  position of  economic superiority by reason      of his  greater volume of his business. And to make his      tax heavier,  both absolutely  and relatively,  is  not

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    arbitrary discrimination,  but an attempt to proportion      the payment  to capacity  to pay  and thus to arrive in      the end at a more genuine equality. The economic wisdom      of a tax is within the exclusive province. 990      of legislature.  The only  question for  the  court  to      consider is  whether there is rationality in the belief      the legislature that capacity to pay the tax increases,      by and large, with an increase of receipts.           "Certain it is that merchants have faith in such a      correspondence and  act upon  that faith. If experience      did not  teach that  economic advantage goes along with      larger sales,  there would be an end to the hot pursuit      for wide  and wider  markets .....In  brief, there is a      relation of  correspondence between capacity to pay and      the amount  of business  done. Exceptions,  of  course,      there are.  The law  builds  upon  the  probables,  and      shapes the  measure of the tax accordingly...... At the      very least,  an increase of gross sales carries with it      an increase of opportunity for profit, which supplies a      rational basis for division into classes, at all events      when  coupled   with  evidence  of  a  high  degree  of      probability that the opportunity will be fruitful".           (See the  dissenting judgment  of Justice Cardozo.      Justice Brandeis and Justice Stone)      The reasoning  of the  minority in that case appeals to us  as   more  in  consonance  with  social  justice  in  an egalitarian state than that of the majority.           As we  said, large  dealer occupies  a position of      economic  superiority   by  reason  of  his  volume  of      business and  to make  the  tax  heavier  on  him  both      absolutely   and    relatively   is    not    arbitrary      discrimination but an attempt to proportion the payment      to capacity to pay and thus arrive in the end at a more      genuine  equality.   The  capacity   of  a  dealer,  in      particular  circumstances,   to  pay   tax  is  not  an      irrelevant factor  in fixing  the rate  of tax  and one      index of  capacity is  the  quantum  of  turnover.  The      argument that  while a  dealer beyond  certain limit is      obliged to pay higher tax, when others bear a less tax,      and it  is consequently  discriminatory, really  misses      the point namely that the former kind of dealers are in      a position  of economic  superiority by reason of their      volume of business and form a class by 991      themselves. They  cannot be  treated as  on a part with      comparatively small  dealers. An  attempt to proportion      the payment  to capacity  to pay and thus bring about a      real and  factual  equality  cannot  be  ruled  out  as      irrelevant in  levy of  tax on  the sale or purchase of      goods. The object of a tax is not only to raise revenue      but also to regulate the economic life of the society".      The same  principles have been recently reiterated by a Three Judge  Bench of  this Court  in the case of M/s Pharma Associates and  others v.  State of  Bihar and  Ors. In  the light of  the aforesaid  pronouncements, it is manifest that the contention  put forward  by  the  petitioners  that  the impugned  enactment  is  devoid  of  legislative  competence inasmuch as  it imposes  not a  tax on  sales but  a tax  on income, that  the adoption  of a slab system for determining tax liability  is alien to the concept of sales tax and that the levy  of additional  tax under  the  impugned  enactment violates Articles  14 and  19 of  the Constitution  are  all totally devoid of merit. We do not also see any substance in the plea raised in the Writ Petitions that the provisions of

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the impugned  Act  are  violative  of  Article  301  of  the Constitution.      In the  result, all  these Writ  Petitions fail and are dismissed with costs. S.R.                                     Petition dismissed. 992