2005 (9) TMI 613

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.... returns that he had filed for the period April 1, 1998 to March 31, 1999 was not correct or a proper return, particularly, as the petitioner had not quantified his tax liability in terms of section 6D with regard to the liability for payment of cess in terms of this provision. It was at this stage the petitioner approached this court challenging the legality of this notice along with a challenge to the constitutional validity of the very provision, viz., section 6D of the Act, on the premise that the levy in terms of section 6D is invalid and if so, the very levy, i.e., the very charging section is bad, the question of the authorities proceeding further pursuant to the show cause notice which is also bad in law does not arise and theref....

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....enior Counsel submits that, that is the limiting factor even in terms of the charging section and the investment   even put at the zenith by the Government in such companies can be as much as the capital base of the companies themselves and not beyond and the learned counsel further points out that the equity capital of the Infrastructure Development Company is 50 crores whereas the equity capital of the Bangalore Mass Rapid Transit Limited Company is 20 crores and put together it is only 70 crores and the moment the Revenue realises this amount of Rs. 70 crores, through imposition of cess under section 6D of the Act, thereafter, the question of further realisation under this provision does not arise; that the charges of the section....

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....etitioner can succeed on the arguments submitted by its learned counsel only if the petitioner can make good the proposition that the liability for payment of cess under section 6D of the Act, does not arise as in terms of the charging section unless it is shown that the amount realised hitherto under this provision is more than sufficient for meeting the purpose for which the cess is sought to be imposed, viz., for raising funds to invest as equity funds by the Government in the two companies mentioned above. This factual position having not been made good at all, the petitioner cannot seek the relief of declaration to either for invalidating the provisions of section 6D or to hold that the provision does not operate after that   ....