TaxTMI 
TaxTMI 
1992 (11) TMI 272
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....Orissa Cement. (supra). The appellants contend that this court is only to examine whether the 3 levies (including the amendments thereof) which are in question are pari materia with the levies which were declared to be unconstitutional by the Supreme Court in India Cement (supra) and Orissa Cement (supra). 3. The writ petition was filed in Sept. 1991. On 10th December, 1991 the learned trial Judge made an interim order restraining Eastern Coalfields Limited and Coal India Limited from including in the sale bills of coal any amount representing any levy of cess under the Cess Act, 1980. The West Bengal Primary Education Act, 1973 and West Bengal Rural Employment and Production Act, 1976 as well as an injunction restraining the State of West Bengal from realising any cess through the said coal companies under the aforesaid 3 Acts. This order was made presumably on the basis of the order of the Supreme Court dated 18th Nov. 1991 in Writ Petition (Civil) No. (s) 993/91 (Coal Consumers Association of Eastern v. State of West Bengal) where on a petition filed under Art. 32 of the Constitution by the Coal Consumers Association of Eastern India challenging the three levies, the Supreme ....
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....l Act, 1987 as amended by West Bengal Taxation Tribunal (Amendment) Act, 1992 read with notification of Finance Department No. 2697 FT dated 28th April, 1992. Our attention was also drawn to Art. 323B of the Constitution and particularly sub-clause (3)(d) thereof. It has also been pointed out that an application for transfer of the writ petition to the Tribunal constituted under the Tribunal Act, 1987 filed under Sec. 15 thereof is pending before the learned trial Judge. Since the point has been strenuously urged, it is necessary to examine the issue in some detail. 7. Learned counsel for the State contended that the West Bengal Taxation Tri-buna1 (hereinafter referred to as the "Tribunal") has been constituted under the Tribunal Act, 1987 in accordance with the provision of Art. 323B of the Constitution. Reliance has been placed on sub-clause (3) of Art. 323B which provides that a law made under that article may exclude the jurisdiction of all courts, except the jurisdiction of the Supreme Court under Art. 136 with respect to all or any of the matters falling within the juirsdiction of the Tribunal. The Tribunal Act, 1987 has expressly provided for the exclusion of the jurisdic....
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.... Courts including the High Court but excluding the Supreme Court of India for adjudication or trial of disputes or complaints or offences with repect to all matters of levy, assessment, collection and enforcement of any tax under any specified State Act and matters connected therewith or incidental thereto: Provided that where the matter relates to disposal of question of constitutional validity of any provision of any specified State Act, the matter shall be decided by a Bench constituted of at least three Members of which the Chairman shall be one. (2) Notwithstanding anything contained elsewhere in this Act, all proceedings triable by any Court or courts in accordance with the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), shall continue to be tried by such Court, and the Tribunal shall have no jurisdiction to try such proceedings. Explanation -- For the purpose of his subsection,' proceedings shall include proceedings under Chapter XXIX and Chapter XXX of the Code of Criminal Procedure, 1973. ................................... Section 14. Exclusion of jurisdiction of Courts.-- (1) On and from the date from which jurisdiction, powers and auth....
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....ity has not been raised. We are of the view that this is a tactical strategy devised because of certain observations which we made and questions which we put to learned Counsel for the State with regard to the interpretation of Art. 323B. We should have thought that having raised the issue the State should have invited the appellate Court to decide the same so that litigation is shortened at least as far this issue and this Court is concerned parti cularly in view of the fact that quite a number of cases are pending in this Court challenging these levies and the order of the Supreme Court dated 20th December, 1991 where the Supreme: Court has noted that this very question is pending before the High Court in proceedings under Art. 226 of the Constitution. We will deal with the submission extracted from the note after dealing with the preliminary objection raised at the hearing. 12. In meeting the preliminary objection, Mr. Samaraditya Pal, learned Counsel appearing on behalf of the appellant submitted that the provisions of Art. 323B would reveal that the issue as to ouster of jurisdiction of this Court under Art. 226 of the Constitution in relation to the question in controversy....
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....ning words of Art. 323B, have been explained by an Explanation in that very Article. The Explanation makes it clear that the basic scheme of the Constitution regarding legislative relations and distribution of legislative powers contained in Part XI is not in any way affected by the insertion of Art. 323B in the Constitution. The Explanation clearly says that "appropriate Legislature" in relation to any matter means Parliament or, as the case may be, a State Legislature competent to make laws with respect to such matter in accordance with the provision of Part XL The expression "in relation to any matter" in the Explanation obviously refers to any matter enumerated in Clause (2) of Art. 323B. The Parliament or the State Legislature, therefore, must be competent to make laws with respect to "such matter". The words "such matter" will obviously refer to "any matter" in the earlier part of the Explanation and, therefore, to any of the matters enumerated in clause (2). It is therefore clear that when the "appropriate Legislature" is the State Legislature it must be competent to make a law on a matter enumerated in clause (2). The Tribunal would have power to adjudicate a taxation dispu....
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....ibunal Act 1987, amongst the Acts specified were the West Bengal Primary Education Act, 1973 and the: West Bengal Rural Employment and Production Act, 1976. Subsequently, as noted earlier, by reason of the West Bengal Taxation Tribunal (Amendment), Act, 1992 read with notification of Finance Department No. 2697 FT dated 20th April, 1992 the Cess Act, 1880 also became a specified State Act. It is therefore clear that as far as the West Bengal Primary Education Act, 1973 and West Bengal Rural Employment & Production Act, 1976 are concerned they were specified State Acts within the meaning of S. 2(k) of the: Tribunal Act, 1987 before the Supreme Court-decided India Cement (supra) and Orissa Cement (supra). By reason of the application of the principles laid down in India Cement (supra) and Orissa Cement (supra) if it is held (which we have held later on merits) that the levies of cess were still-born then the specification of these two Acts must be considered to be ineffective because specification of Acts which are void cannot have any legal efficacy. As far as the Cess Act is concerned this became a specified State Act within the meaning of S. 2(k) of the Tribunal Act, 1987 by reaso....
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....the specified date like the instant writ petition cannot and/or does not arise. Therefore the pendency of such a transfer application cannot have any material hearing as far as the hearing of the appeal is concerned and particularly because of the view we have taken on the issue of jurisdiction. 18. We now propose to examine whether the learned Counsel for the appellant is right in contending that there is ne distinction of substance between the levies which are challenged in the writ petition and the levies which were declared to be beyond the competence of the State Legislature in India Cement (supra) and Orissa Cement (Supra). 19. In India Cement (supra) the Supreme Court dealt with S. 115 of the Madras Village Panchayat Act which reads as under:-- "(1) There shall be levied in every panchayat development block, a local cess at the rate of 45 naya paise on every rupee of land revenue payable to Government in respect of any land for every fasli. Explanation : In this section and in S. 116, 'land revenue' means public revenue due on land and includes water-cess payable to the Government for water supplied or used for the irrigation of land, royalty, lease amoun....
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....lands on whatever tenure held calculated in the manner hereinafter appearing. (2) The rate per year at which such cess shall be levied shall be twenty five per centum of the annual value of the land. (3) xx xx xx xx xx" "(2) The rate at which such cess shall be levied shall be - (a) in the case of land held for carrying on mining operations in relation to any mineral, such per centum of the annual value as the State Government may, by notification, specify from time to time in relation to such mineral." "7. Annual Value -- (1) The annual value of lands held by a raiyat shall be the rent payable by such raiyat to the landlord immediately under whom he holds the land : (3) In the case of lands held for carrying on mining operations, the annual value shall be the royalty or, as the case may be, the dead rent payable by the person carrying on mining operation (s) to the Government or the pit's mouth value wherever it has been deter mined." " 10. Application of proceeds of the cess:-- (1) Notwithstanding anything contained in any other law, all amounts collected as cess, shall be credited fifty percentum of those, which represent cess collected in respect of ....
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....with mineral rights were the tax levied under the said Act. M.P. Karadhan Adhiniyam, 1982 (Act 15 of 1982) 9. (1) There shall be levied and collected - (a) on the land held under mining lease for undertaking mining operations for a major mineral other than coal a mineral areas development cess at the rate of one hundred per centum of the rental value thereof; (b) on the land held under mining lease for undertaking mining operations for coal, a mineral areas development cess at the rate of the hundred twenty-five per centum of the rental value thereof." (2) For the purpose of sub-sec. (1), rental value shall be equal to the royalty or dead rent, as the case may be, whichever is higher. (3) The mineral areas development cess shall be payable by the person to whom the mining lease is granted. (4) the mineral areas development cess shall, subject to and in accordance with the rules made in this behalf, be collected by such agencies and in such manner as may be prescribed and shall be applied towards development of mineral bearing areas." 10. "Application of cess -- The State Government shall decide from time to time the manner in which the amount collected from ....
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....in the case of annual net profit, fifteen paise on each rupee of such profits; (c) in the case of annual value of land, twenty five paise per rupee of the annual value; and (d) in the case of sale value of immoveable properties including first produce, the rate will not exceed 30 per cent and the State Government may, by notification prescribe from time to time the commodities on the sale of which cess would be levied along with the rates at which it would be levied." "9. Application of the proceeds of cess.--The proceeds of local cess and all sums levied or recovered as interest or otherwise shall in each district be paid in the district fund - (i) at such rate as may, from time to time, be determined by the State Government in the case of local cess on annual value of land; and (ii) at such rate as may, from time to time, be determined by the State Government, subject to a maximum of twenty per cent, in case of local cess on royalty of mines and quarries, or value of mineral bearing land, sale value of other immoveable properties, forest produce and annual net profit from tramways and railways, and the remaining amount shall be deposited in the consolidated fund of....
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....nbsp; xx xx xx xx xx xx (b) in respect of coal mines [five per centum of the value of coal] on-the despatches therefrom; (c) in respect of quarries and mines other than coal mines, [one rupee on each tonne of materials or minerals other than coal on the annual despatches therefrom] Explanation.-- For the purpose of clause (b) the expression "value of coal" shall mean - (i) in the case of despatches of coal as a result of sale thereof, the prices charged by the owner of a coal mine for such coal, but excluding any sum separately charged as tax, cess, duty, fee or royalty for payment of such sum to Government or a local body, or any other sum as may be prescribed or (ii) in the case of despatches other than those referred to in item (i), the prices chargeable by the owner of a coal mine for such coal if they were despatched as a result of sale thereof, but excluding any sum separately chargeab....
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....or payment of such sum to Government or a local body, or any other sum as may be prescribed: Provided that if more than one price is chargeable for the same variety of coal, the maximum price chargeable for that variety of coal shall be taken as the basis of valuation for the purpose of this item." 22. The provisions of West Bengal Primary Education Act, 1973 and West Bengal Rural Employment and Production Act, 1976 which levied cess were amended by the West Bengal Taxation Laws -- (Amendment) Act, 1992 with effect from 1-4-1992. The material amendments made by the said Amendment Act are as follows: "2. In the West Bengal Primary Education Act, 1973,- (1) in section 78 for sub-sec. (2), the following sub-section shall be substituted - (2) The education cess shall be levied annually - (a) in respect of land, except when a cess is leviable and payable under clause (b) or clause (c) of sub-sec. (2A) at the rate of ten paise on each rupees of annual value thereof as assessed under the Cess Act, 1880; (b) in respect of a coal-bearing land, at the rate of five per centum of the annual value of the coal-bearing land as defined in clause (1) of S. 2 of the West Bengal ....
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....nd or quarry; (1c) "development value" means a sum equivalent to five times the annual value of land as assessed under the Cess Act, 1880; (b) after clause (3), the following clause shall be added and shall be deemed - always to have been added:-- (4) "year" means a financial year as defined in clause (15) of S. 3 of the Bengal General Clauses Act 1899; (2) in section 4, for sub-sec, (2) the following sub-section shall be substituted; (2) The rural employment cess shall be levied annually - (a) in respect of land, except when a cess is leviable and payable under clause (b) or clause (c) or sub-section (2 A), at the rate of six paise on each rupee of development value thereof; (b) in respect of a coal-bearing land, at the rate of thirty-five per centum of the annual value of coal-bearing land as defined in clause (1) of S. 2; (c) in respect of a mineral-bearing land (other than coal-bearing land) or quarry, at the rate of fifty paise on each tonne of minerals (other than coal) or materials despatched therefrom; Provided that when in the coal-bearing land referred to in clause (b), there is no production of coal for more than two consecutive years, such ....
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....laration contained in S. 2 of the Mines and Minerals Regulation & Development Act," 1957, the entire field of mines and minerals were occupied by Parliament by reason of Entry 54 of List I of the Seventh Schedule to the Constitution. 25. We propose to refer to some of the important passages from India Cement (supra) and Orissa Cement (supra) for deciding as to whether the levies impugned in these proceedings are pan materia with the levies which were held to be beyond the legislative competence of the State Legislature in India Cement (Supra) and Orissa Cement (Supra). 26. In India Cement Sabyasachi Mukharji J. (as his Lordship then was) delivering the judgment on behalf of himself and 5 other Learned Judges analysed the various entries in the Seventh Schedule and came to the conclusion that the Madras levy was unconstitutional, because it was beyond the legislative competence of the State Legislature. The following passages from the judgment are highly instructive for the present purpose (paras 22, 23, 24 & 32 of AIR) :-- "It was also contended on behalf of the respondent State of Tamil Nadu by Mr. Krishnamurthy Iyer that it could also be justified under Entry 49 of List ....
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....t permit the levy of tax on machinery contents (sic) in or situated on the building even though the machinery was there for the use of the building for a particular purpose. Rule 7(2) of the Bombay Municipal Corporation Rules was held to be accordingly ultra vires in that case. In S. C. Nawn v. W.T.O., Calcutta, this Court had occasion to consider this and upheld the validity of the Wealth Tax Act, 1957 on the ground that it fell within Entry 86 of List I and not Entry 49 of List II. Construing the said entry, this Court observed that Entry 49 List II contemplated a levy on land as a unit and the levy must be directly imposed on land and must bear a definite relationship to it. Entry 49 of List II was held to be more general in nature than Entry 86, List I which was held tp be more specific in nature and it is well settled that in the event of conflict between Entry 86, List I and Entry 49 of List II, Entry 86 prevails as per Article 246 of the Constitution. In Asstt. Commr. of Urban Land Tax v. Buckingham & Carnatic Co. Ltd. , this Court reiterated the principles laid down in S.C. Nawn case and held that Entry 49 of List II was confined to a tax that was directly on land as a u....
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....es and mineral development subject to the provisions of List I with respect to regulation and development under the control of the Union and Entry 54 in List I deals with regulation of mines and minerals under the control of Union declared by the Parliament by law to be expedient in public interest. Even though minerals are part of the State List they are treated separately, and therefore the principle that the specific excludes the general, must be applied. See the observations of Waverly Jute Mills Co. Ltd. v. Raymon & Co. (I) Pvt. Ltd. , where it was held that land in Entry 49 of List II cannot possibly include minerals. It was contended by Mr. Krishnamurthy Iyer that the State has a right to tax minerals. It was further contended that if tax is levied, it will not be irrational to correlate it to the value of the property and to make some kind of annual value basis of tax without intending to tax the income. In view of the provisions of the Act, as noted hereinbefore, this submission cannot be accepted. Mr. Krishnamurthy Iyer also further sought to urge that in Entry 50 of List II, there is no limitation to the taking power of the State. In view of the principles mentioned h....
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....atute viz. the Madhya Pradesh Upkar Adhiniyam (Act 1 of 1982 came up for the consideration of a Full Bench of the Madhya Pradesh High Court in M.P. Lime Manufacturers' Association v. State (and connected cases) in . The Full Bench held that, in view of S. 12. of the Act having been deleted by the 1989 amendment, the levy under S. 11 of the Act ceased to be a fee and become a tax. It held further that the levy was not covered by Entry 49 or Entry 50 of List II and was, therefore, ultra vires. It observed: 'It is significant to note that cess is not imposed on all land and that it is not dependent either on the extent of the land held in connection with mineral rights or on the value thereof. The subject matter of tax, therefore, is major mineral raised from the land held in connection with mineral right. If no minerals are raised, tax is not leviable. The tax is not dependent on the extent of the land held in connection with mineral rights. It is not a case where all land is liable to payment of cess, that the liability is assessed on the basis of the value of the land and that the measure of the tax in so far as land held under a mining lease is concerned, is the value of t....
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....the levies challenged here. Mr, Pal is right in pointing out that these are stronger cases than the levy considered in India Cement (supra) because under the impugned provisions of the Cess Act, 1880, West Bengal Primary Education Act, 1973 and West Bengal Rural Employment and Production Act, 1976 the levy is directly on coal. All these 3 Acts provide that Cess shall be assessed or levied on different types of lands. Section 6 of the Cess Act 1880 deals with 3 types of immovable properties namely "in respect of lands"; "in respect of all mines and quarries" and "in respect of tramways, railways and other immovable property". The West Bengal Primary Education Act, 1973 divides the subject matter of the levy into broadly two categories "in respect of Coal Mines" etc. The same is more or less repeated by the West Bengal Rural Employment and Production Act, 1976. Having made these divisions, each of these Acts provide for assessment of Cess in respect of Coal Mines on the value of the annual despatches of coal. It is on this basis that Coal India Limited and its subsidiaries are including Cess in the coal bills payable by the appellant i.e. adding the statutory percentage of the value ....
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.... the State Legislature on the principles laid down in India Cement (supra) and Orissa Cement (supra) and were therefore ultra vire and void. The amendments, to the West Bengal Primary Education Act 1973 and the West Bengal Rural Employment and Production Act 1976 made by the West Bengal Taxation Laws (Amendment) Act 1992 which have been set out above, in our view, also lend support to the submission of the appellant that the amendments were brought about in an attempt to cure the lacuna in the 1973 Act and the 1976 Act. It is not however necessary to rest our opinion on this basis in the view that we have taken above. 34. The validity of the amended provisions of the 1973 Act and the 1976 Act as amended by the West Bengal Taxation Laws (Amendment) Act 1992 has been challenged before us by filing a supplementary petition, the learned Counsel for the State has objected that in these proceedings, we cannot or should not adjudicate upon the validity of these amendments since the amended provisions have not been challenged in the writ petition. We are unable to accept these submissions for reasons more than one. First of all the question raised is a pure question of law involving ....
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....g that as could have been fetched by the entire production of coal during the said two immediately preceding years, had the owner of such coal-bearing land sold such coal at the price or prices excluding the amount of tax, cess, fee, duty, royalty, crushing charge, washing charge, transport charge pr any other amount as may be prescribed, that prevailed on the date immediately preceding the first day of that financial year. Explanation where different prices are prevailing on the date immediately preceding the first date of that financial year for different grades or qualities of coal, the value of coal of each grade or quality produced during the two years immediately preceding that financial year shall be determined accordingly; (1a) "Coal bearing land" means holding or holdings of land having one or more seams of coal comprising the area of a coal mine. 37. Now if cess is assessed and computed on the basis of amended levies, the first point that strikes us is that such assessment is on the basis of value of coal produced from "coal-bearing land" and "coal-bearing land" has been defined to mean land having one or more seams of coal comprising the area of a coal mine. Theref....
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....ench of this Court has also disposed of the challenge to a similar levy made by the Gujarat State in Writ Petitions Nos. 100-116 of 1991. We do not think it is necessary to set out in detail the facts and various contentions urged before us which are practically a repetition of the contentions urged before us in the earlier decisions above referred to. We may only mention that the levy in the present case is practically on all fours with the levy in Orissa Cement case (supra). It is sufficient to say that there are no distinguishing features and we are not persuaded that the earlier decision requires reconsideration as urged by Sri Tarkunde. For the reasons set out in India Cement (supra) and Orissa Cement cases (supra) we are of the opinion that the State Legislature did not have the competence to legislate' for the levy of a tax on mineral bearing lands based on the royalty derived from the land." 40. It is therefore clear beyond any doubt that on the application of the principles laid down by the Supreme Court in India Cement (supra); Orissa Cement (supra) and Rajasthan case (supra) the amended levies are also unconstitutional being beyond the legislative competence of....
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....also drawn our attention to R. 26 of the Rules framed by this Court in relation to matters under Art. 226 of the Constitution of India and has relied upon Chanda Jhunjhunwalla v. State of West Bengal (1985) 89 Cal WN 924 and Samsingh Plantation Industries Ltd. v. State of West Bengal (1989) 93 Cal WN 343. 43. We are unable to accept the broad proposition advanced on behalf of the State. It is true that ordinarily the Court does not decide finally the main question in issue at the interlocutory stage even in proceedings under Art/226 of the Constitution. This cannot be and is hot an absolute rule. To accept this proposition as an absolute rule would mean that even if a Court finds at the interlocutory stage that there is a clear transgression of law or that a matter involving pure question of law is covered by the principles laid down by the Apex Court and therefore law declared under Art. 141 of the Constitution or even if there is an admission on the part of the State at the interlocutory stage that the legal grievance of a writ petitioner is justified, even then the Court would be powerless to grant the relief and must go through all the procedural formalities like e.g. filing....
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....really a reiteration of the ordinary or general rule. Here we have taken a final view of validity of the levies by applying the law declared by the Supreme Court in the context of levies which were pari materia. 47. Learned counsel for the State placed strong reliance on the Division Bench judgment of this Court in (1978) 82 Cal WN 44. In that case the Division Bench came to a finding that the dispute which was the subject matter of the Civil suit filed before a learned Munsif was fully covered by S. 86 of the West Bengal Co-operative Societies Act, 1973, and as such the suit was barred by reason of S. 132(2) of the Act. On this finding the Division Bench held that the learned Munsif as well as the lower appellate Court was justified in staying the order for appointment of the receiver made in the suit. The Division Bench, however, also held that the lower appellate Court should not have dismissed the suit while holding that the suit was barred but should have kept the suit pending. After agreeing with the view taken by the lower appellate Court that the suit was barred under S. 132(2) of the West Bengal Co-operative Societies Act, 1973, the Division Bench observed :-- "But t....
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....ustries (1989) 91 Cal WN 343 (supra). We do not find any good reason for departing from the view taken in these two cases and therefore, the question of referring this issue to a larger Bench, as submitted by learned Counsel for the State, does not arise. The other case cited on behalf of the State in this connection namely, is distinguishable for similar reasons because in that case the Supreme Court only pointed out that in a revision proceeding under Section 115 of the Civil Procedure Code against an interlocutory order of trial Court, the High Court could, not try other issues arising in a case even by concession of parties. 50. We cannot help noting thai it was rather unusual for the State to take this attitude and it lends credence to the submission made by the learned Counsel for the appellant that delaying a final decision on the constitutionality of the levies is in the interest of the State. Because of the principle laid down in Orissa Cement (supra) in relation to refund of illegally collected cess, no refund is to be made of any cess collected up to the date of the judgment by which the concerned levies are declared to be unconstitutional. 51. It was also contende....
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....o defer pronouncement on the question of the effect of later amendment when it is admittedly not a validating one and stands in the same light as the original enactment. 53. The only issue which remains to be considered is the question of refund. We are inclined to accept the submission made on behalf of the State. We place our decision on the principles laid down by the Supreme Court in India Cement (supra), Orissa Cement (supra) and the Federation of Mining Association of Rajasthan v. State of Rajas-than, . In Orissa Cement (supra) the Supreme Court observed as follows :-- "For the reasons discussed above, we are of the opinion that, though the levy of the cess was unconstitutional there shall be no direction to refund to the assessees of any amounts of cess collected until the date on which the levy in question has been declared unconstitutional. This, in regard to the Bihar cases, will be the date of this judgment. In respect of Orissa, the relevant date will be 22-12-1989 on which the date, the High Court, following India Cement, (supra) declared the levy by the State Legislature unconstitutional. In respect of Madhya Pra-desh, the relevant date will be the date of the j....