TaxTMI 
TaxTMI 
2011 (5) TMI 869
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....aforesaid section would show that it enables the Government by a notification in the official gazette to, inter alia, amend any entry (including relating to the rate of tax) in any schedule to the Act. It is also provided that the rate of tax, if it is enhanced, shall not exceed 40 paise in a rupee (or 40 per cent). The First Schedule to the Act consists of a list of exempted goods and 4 item No. 38 thereof is "tobacco". The petitioners deal in tobacco and at the relevant point of time, tobacco was exempted from the purview of tax under the Act. As such, the petitioners had no grievance in this regard. However, by a notification dated April 5, 2007, the Government omitted "tobacco" from the First Schedule to the Act, thereby making its sales taxable. The notification dated April 5, 2007 reads as follows: "No. FTX.55/05/Pt-III/38.-In exercise of the powers conferred by section 17 of the Assam Value Added Tax Act, 2003 (Assam Act VIII of 2005), hereinafter referred to as the principal Act, the Governor of Assam is hereby pleased to make the amendment by way of omission in First Schedule to the said Act, namely:- In the principal Act, in the First Schedule, serial number 38 with en....
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....and 144 in 15 VST): "134. The question, therefore, is whether the impugned Act has laid down the definite legislative policy and the necessary guidelines for exercise of the power by the delegate, which is discernable from the preamble, objects and reasons and the various provisions of the impugned enactment. It has been contended by the learned counsel appearing on behalf of the assessees that the preamble, objects and reasons as well as various provisions of the Act, which provide for imposition of entry tax on the goods do not lay down the legislative policy and also the guidelines to the executive to exercise their power under delegated legislation, as from the preamble as well as the objects and reasons and the provisions of the Act, it is evident that the same are not compensatory in nature, which is the basic requirement for an enactment imposing entry tax. The counter argument of the learned AAG is that the preamble, objects and reasons and the different provisions of the Act clearly lay down the legislative policy as well as the guidelines to the executive. 135. As discussed above, when a particular enactment is tested on the ground of excessive delegation of legislative....
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.... well as the different provisions of the impugned Act, as stood prior to its amendment, by the Second Amendment Act of 2005, as discussed above, clearly lay down the legislative policy as well as indicate whom are to be taxed, what are to be taxed. It has also, in the objects and reasons, given the guidelines to the delegatee the rate at which such tax is to be levied, by indicating the difference of rate of tax between the Central Sales Tax Act, neighbouring States and the State of Assam. Therefore, it cannot be said that the Legislature by delegating the power to the authority to add to, amend, etc., and by allowing to fix the rate of tax has abdicated its essential legislative functions, without laying down the legislative policy and indicating the guidelines. The objects and reasons of the Act clearly provide the guidelines as to what to tax, whom to tax and at what rate." We have to look at the Act in the above light, and ascertain if any guidance is given for exercise of power under section 17 thereof. The preamble to the Act does give sufficient guidance inasmuch as the statute provides for the imposition and collection of tax on sales or purchases of goods in the State of ....
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....that there is no excessive delegation of power given to the State Government under section 17 of the Act nor has the notifi cation dated April 5, 2007 been issued arbitrarily. As mentioned above, this is essentially a legislative function and the court has no role to play in this regard. We, therefore, negative the challenge to section 17 of the Act and the notification dated April 5, 2007. The learned counsel for the petitioner placed reliance on Devi Dass 15 Gopal Krishnan v. State of Punjab [1967] 20 STC 430 (SC); AIR 1967 SC 1895. In that case, section 5 of the East Punjab General Sales Tax Act, 1948 was under challenge as well as the amendment to section 5 of that Act. 1 Here italicised. Section 5 of the East Punjab General Sales Tax Act, 1948, as it originally stood and as it stood after its amendment, reads as follows: "S. 5.-Subject to the provisions of this Act, there shall be levied on the taxable turnover every year of a dealer a tax at such rates as the Provincial Government may by notification direct. S. 2. Amendment of section 5 of Punjab Act 46 of 1948.-In subsection (1) of section 5 of the East Punjab General Sales Tax Act, 1948, after the word 'rates' ....