TaxTMI 
TaxTMI 
1983 (3) TMI 297
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....lack of uniformity. The present Bill is proposed to be enacted with the primary Objective of condensing and simplifying the existing laws on the subject by consolidating the different enactments, customs and usages having force of law in the State and also to amend the same in such matters where they are found to be defective and deficient." Its object was to have a uniform rate throughout the State. By Section 2, the enactments which were specified, in the first column of the Schedule were repealed to the extent mentioned therein that is to say, the provisions therein relating to assessment and levy of cess ceased to be in force on and from the date the Cess Act came into force. Section 3 defined certain expressions used in the Cess. Act, The expression 'land' was defined, as meaning "lands of whatever description arid includes land which is covered with water, but does not include houses or buildings". Chapter II related to imposition and application of the cess and contained the crucial provisions. Section 4 was the charging section and read as hereunder:-- "4. All lands to be liable to payment of cess- (1) From and after the commencement of this Ac....
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....ny law, etc. Section 10 provided that the cess collected would be credited to the Consolidated Fund, of the State and would be utilised in the manner stated in Clauses (a) and (b) thereof. Section 11 provided that calculation of annual value of land and assessment of cess payable in respect thereof would be in accordance with such rules as might be prescribed. Section 18 contained the provisions for appeals. Section 19 conferred on the Board of Revenue the power of revision. Section 21, authorised the Government to make rules for carrying out all or any of the purposes of the Cess Act and in particular, in regard to matters expressly required or allowed by the Cess Act to be prescribed. In pursuance of the said provision, the Orissa Cess Rules, 1963 were framed. Rule 3 prescribed the date and manner of payment of cess. Rule 4 laid down the procedure for revision of valuation. Sections 8, 9, 18 and 19 were amended and a new section --S. 9-A was inserted and S. 11 was omitted by Orissa Act 10 of 1965. The Orissa Cess (Amendment) Act, 1976 (Orissa Act 42 of 1976) was published in the Gazette on 16-10 1976. A new proviso was inserted after the existing proviso to Sub-section (1) of Se....
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.... effect, purpose and design; the Legislature purporting to impose royalty under the garb of cess. Alternatively, it was a tax on royalty. The object of the legislation was totally different from what it ostensibly purported to be; (c) the Cess Act was violative of Article 14, of the Constitution of India in its hostile discrimination, unequal treatment; (d) it also inhibited or impeded free flow of trade and commerce guaranteed under Article 301. It was confiscatory and extortionate in nature, thereby infringing Articles 14 and 19(1)(f); and (e) the impost of cess violated the condition contained in the mining leases--statutory lease--prescribed by the Cess Act and the Orissa Cess Rules. Mr. R. K. Mohapatra appearing for one of the petitioners took a different stand He urged that the initial object of the Cess Act was to levy a fee. By amendment in 1976, the Legislature purported to impose a tax and the imposition after the amendment of 1976 was, in fact a tax on royalty and he drew attention especially to the statement of objects and reasons of Orissa Act 42 of 1976. In other respects, he adopted the submissions made by Mr. Das. Mr. Ranjit Mohanty, the learned counsel appeari....
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....n the deletion of 'oilfields' from the Entries and that the declaration must be made by Parliament. In 1948, the Legislative Assembly enacted the Mines and Minerals (Regulation and Development) Act, 1948. The said Act made provisions for regulation of mines and oilfields and for development of mines. In 1957, the Parliament enacted the Central Act of 1957. It came into force on 1-6-1958. It made an amendment in the 1948 Act so as to make the latter relate to oil fields only. Section 2 contains the declaration:-- "It is hereby, declared that it is expedient in the public interest that the Union should, take under its control the regulation of Mines and the development of minerals to the extent hereinafter provided." Section 4 of the Central Act of 1957 provides that no mining lease shall be granted after the commencement of the Act otherwise than in accordance with the rules made under the Act. It also provides that no person shall undertake any prospecting, mining operations in an area except under and in accordance with the terms and conditions of a prospecting licence or, as the case may be, a mining lease granted under the Act and the rules made thereunder. B....
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....e Government, be recovered, in the same manner as an arrear of land revenue and, such due shall be a first charge on the assets of the holders of the licence or mining lease, as the case may be. Rule 31 of the Mineral Concession Rules 1960 lays down that where an order has been made for the grant of a mining lease, the lease deed in the prescribed form (Form K). or in a form as near thereto as circumstances of each case may require, shall be executed within six months of the order or within such further period as the State Government may allow in this behalf. It is not necessary for our purpose to refer to the other provisions of the Central Act of 1957 or Mineral Concession Rules. 7. It was contended by the counsel for the petitioners that having regard to the declaration in Section 2 of the Central Act of 1967 that "it is expedient in the public interest that the Union should take under its control the regulation of Mines and development of minerals", the State Legislature was denuded of the power to make legislation in respect of mines and mineral development. The field of the State Legislature under Entry 23 of List II was taken over by the Parliament and the imposi....
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....tish North America Act and the Australian Commonwealth Act and must have known that it is not in practice possible to ensure that the powers entrusted to the several Legislatures will never overlap." (Lord Porterprafulla Kumar v. Bank of Commerce, AIR 1947 PC 60). It gave an exhaustive enumeration of powers and distributed them in three Legislative lists--List I being Federal, List II being provincial and List III being Concurrent Legislative List. Section 100(1) of the Government of India Act, 1935, gave the Federal Legislature exclusive power to legislate with respect to matters in List I, Section 100(2) gave the Federal Legislature and, subject to Section 100(1), also to the provincial Legislature, power to legislate in respect of matters in List III; and Section 100(3) gave the Provincial Legislature, subject to Sections 100 (1) and (2), exclusive power to legislate in respect of matters in List II. Such enumeration of powers was made with a view to reducing litigation arising from overlapping powers. The Lists were, in fact supremely well drawn and disputes of substance have presented no insuperable problems. The 1935 Act was an innovation over the earlier Acts enacted by....
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...., the specific Entries in the three Lists in between them must be held to exhaust all conceivable topics or subjects oi legislation and, therefore whenever any matter is dealt with by any particular Act, aa attempt will have to be made to allocate such matter to one or the other of the Entries in these Lists and secondly, it is only when such attempt fails that the Court can fall back upon the residuary Entry 97 of List I, for, resort to residual powers should be the last refuge. See J.C. Waghmare v. State of Maharashtra, AIR 1978 Bom 119 (FB). The problem of construction of the Entries has engaged the minds of Judges, In the case of United Provinces v. Mt. Atiqua Begum, AIR 1941 FC 16. Maurice Gwyer, C.J., observed: 'The subjects dealt with in the three legislative lists are not always set out with scientific definition. It would be practically impossible lor example to define each item in the Provincial List in such a way as to make it exclusive of every other item in that list, and Parliament seems to have been content to take a number of comprehensive categories and to describe each of them by a word of broad and general import...................I think, however, that non....
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....s enumerated in the two sections overlapped, and the Privy Council had time and again to pass on the constitutionality of laws made by the Dominion and Provincial legislatures. It was in this situation that the Privy Council evolved the doctrine, that for deciding whether an impugned legislation was intra vires, regard must be had to its pith and substance. That is to say, if a statute is found in substance to relate to a topic within the competence of the legislature, it should be held to be intra vires, even though it might incidentally trench on topics not within its legislative competence. The extent of the encroachment on matters beyond its competence may be an element in determining whether the legislation is colourable, that is, whether in the guise of making a law on a matter within its competence, the legislature is, in truth, making a law on a subject beyond its competence. But where that is not the position, then the fact of encroachment does not affect the vires of the law even as regards the area of encroachment........." (A. S. Krishna v. Madras State, AIR 1957 SC 297) In Subrahmanayan Chettiar v. Muttuswami Goundan, AIR 1941 FC 47, Gwyer, C. J., observed : &qu....
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....utside the authorised field. The legislation must not under the guise of dealing with one matter in fact encroach upon the forbidden field. Nor are you to look only at the object of the legislator. An Act may have a perfectly lawful object e.g., to promote the health of the inhabitants, but may seek to achieve that object by invalid methods, e.g., direct prohibition of any trade with a foreign country. In other words, you may certainly consider the clauses of an Act to see whether they are passed in respect of the forbidden subject." In K.C. Gajapati Narayan Deo v. State of Orissa, AIR 1953 SC 375, B.K. Mukherjea, J., observed (at p. 379):-- "It may be made clear at the outset that the doctrine of colourable legislation does not involve any question of 'bona fides' or 'mala fides' on the part of the legislature. The whole doctrine re-solves itself into the question of competency of a particular legislature to enact a particular law. If the legislature is competent to pass a particular law, the motives which impelled it to act are really irrelevant. On the other hand, if the legislature lacks competency, the question of motive does not arise at all. Wheth....
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....r not it relates to a subject which is within the power of the legislative authority--'vide (1924) AC 328 at p. 337 (B)'. For the purpose of this investigation the court could certainly examine the effect of the legislation and take into consideration its object, purpose or design--'Vide Attorney-General for Alberta v. Attorney-General for Canada, (1939) AC 117 at p. 130 (C). But these are only relevant for the purpose of ascertaining the true character and substance of the enactment and, the class of subjects of legislation to which it really belongs and not for finding out the motives which induced the legislature to exercise its powers. XXX -XXX XXX It may appear on scrutiny that the real purpose of a legislation is different from that appears on the face of it, but it would be a colourable legislation only if it is shewn that the real object is not attainable to it by reason of any constitutional limitation or that it lies within the exclusive field of another legislature............. In R.S. Joshi v. Ajit Mills Ltd., AIR 1977 SC 2279, Krishna Iyer, J. observed (at p. 2286) : ".......In the jurisprudence of power, colourable exercise of or fraud on legislat....
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....tion of the State Legislature is excluded. In other words, if a Central Act has been passed which contains a declaration by Parliament is required, by Entry 54, and, if the said declaration covers the field occupied by the impugned Act the impugned, Act would be ultra vires, not because of any repugnance between the two statutes but because the State Legislature had no jurisdiction to pass the law. The limitation imposed by the latter part of Entry 23 is a limitation on the legislative competence of the State Legislature itself. .......What Entry 23 provides is that the legislative competence of the State Legislature is 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 requires a declaration by Parliament by law that regulation and development of mines should be under the control of the Union in public interest. Therefore, if a Central Act has been, passed, for the purpose of providing for the conservation and development of minerals, and if it contains the requisite declaration, then it would not be competent to the State Legislature to pass an Act in respect of the subject-matter covered by the sa....
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....n of the inhabitants or the amenities of the local area concerned and everything incidental to the administration." The land cess is in truth a 'tax on lands' within Entry 49 of the State List." Their Lordships observed : ".........When a question arises as to the precise head of legislative power under which a taxing statute has been passed, the subject for enquiry is what in truth and substance is the nature of the tax. No doubt, in a sense, but in a very remote sense it has relationship to mining as also to the mineral won from the mine under a contract by which royalty is payable on the quantity of mineral extracted. But that, does not stamp it as a tax on either the extraction of the mineral or on the mineral right......." Their Lordships held that the Central Act of 1957 did not denude the State Legislature of its power to impose cess. In Western Coalfields Ltd. v. Special Area Development Authority, Korba, AIR 1982 SC 697, the controversy was whether property tax could be imposed on the lands and buildings which were used for the purpose of mining operations and were covered by coal mines. It was urged therein that when by virtue of the declara....
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.... in Section 2 of the Central Act of 1957. "........ .Though, therefore, en account of that declaration the legislative field covered by Entry 23, List II may pass on to the Parliament by virtue of Entry 54 List I, the competence of the State Government to enact laws for municipal administration will remain unaffected by that declaration." 11. The various provisions contained in the Central Act of 1957 also indicate that the Parliament while making the declaration in Section 2 has not taken under its control the field of taxation, No provision of the Act or the Rules has been brought to our notice which provides for levy of cess or tax. Learned Counsel for the petitioners strongly relied on Section 25 and contended that it contained, the provisions regarding taxation. In our view, Section 25 is as enabling and not a substantive provision. It says that any rent, royalty, tax or other sum due to the Government under the Act, or the Rules or under the terms and conditions of the prospecting licence or mining lease may, on a certificate of the prescribed authority, be recovered in the same manner as an arrear of land revenue. The section pre-supposes liability to tax under s....
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.... part of the consolidated fund. It was not a payment for service rendered, "......royalty on mines and minerals cannot be a fee but a levy of the nature of a tax." In the case of Laxminarayana Mining Co. Bangalore v. Taluk Development Board, AIR 1972 Mys 299, the Taluk Development Board exercising the powers raider Sections 143 and 144 of the Mysore Village Panchayats and Local Boards Act of 1958, levied licence fee on the mining of manganese or iron ore, etc. When challenged, the levy was sought to be sustained as tax. It was observed that by enacting the Central Act of 1957,: "......the Parliament intended that the power to legislate with regard to taxation on mineral rights also should be assumed by it to the exclusion of the State Legislatures. The expression 'royalty' is used differently in different contexts. Sometimes it is used as equivalent to a tax also and in some other cases it is used as representing the amount payable by a lessee in respect of minerals removed by the lessee even though the lessor is not the sovereign Government. We are of the opinion that the expression 'royalty' in Section 9 which requires payment of royalty to the S....
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....as neither a tax nor a fee but was more akin to rent. In our view royalty is the payment made for the minerals extracted. It is not tax. The question can also be considered from another angle. The taxing powers of the Parliament and the State Legislatures have been enumerated in List II. In List I, Entries 1 to 81 mention the several matters over which the Parliament has authority to legislate. Entries 82 to 92 enumerate the taxes which can be imposed by a law enacted by the Parliament. "An examination of these two groups of Entries shows that while the main subject of legislation figures in the first group, a tax in relation thereto is separately mentioned in the second." In List II, Entries 1 to 44 form one group enumerating the subjects on which the State Legislature may make laws. Entries 45 to 63 form another group and deal with taxes. Construing the constitutional scheme, the Supreme Court in the case of M. P. V. Sundararaminer & Co. v. State of A. P., AIR 1958 SC 468 observed (at p. 494) :-- "...........taxation is not intended to be comprised in the main subject in which it might on an extended construction be regarded as included but is treated as a distin....
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..... 1443):-- ".........Entry 54 of the Union List speaks both of Regulation of Mines and Minerals Development, and Entry 23 is subject to Entry 54. It is open to Parliament to declare that it is expedient in the public interest that the control should rest in Central Government. To what extent such a declaration can go is for Parliament to determine and this must be commensurate with public interest. Once this declaration is made and the extent laid down, the subject of legislation to the extent laid down becomes an exclusive subject for legislation by Parliament. Any legislation by the State after such declaration and trenching upon the field disclosed in the declaration must necessarily be unconstitutional because that field is abstracted from the legislative competence of the State Legislature......." The Supreme Court observed that the pith and substance of the provision in the Bihar Act fell within Entry 23 of List II although it incidentally touched land, and the field having already been occupied by the Central legislation under Entry 54 of List I, the State Legislature had no legislative competence. In our opinion, Entry 54, List I and Entry 49 of List II operate....
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.... in a legislature, the laws promulgated by it must take effect according to the proper construction of the language in which they are expressed. But where the law-making authority is of a limited or qualified character obviously, it may be necessary to examine, with some strictness, the substance of the legislation, for the purpose of determinating what it is that the legislature is really doing. It is the duty of the courts, however, difficult it may be, to ascertain in what degree, and to what extent authority to deal with matters falling within, these classes of subjects (mentioned in the Central and Provincial Lists) exists in each Legislature and to define, in the particular case before them the limits of their respective powers. It could not have been the intention that a conflict should exist; and in order to prevent such a result the two sections must be read together, and the language of one interpreted and where necessary modified by that of the other...........In the interpretation of a completely self-governing constitution founded upon a written organic instrument (such as the Government of India Act of 1935) if the text is explicit, the text is conclusive, alike in wh....
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....gislature may adopt for determining the incidence of tax the annual or the capital value of the lands and buildings. But the adoption of the annual or capital value of lands and buildings for determining tax liability will not, in our judgment, make the fields of legislation under the two entries overlapping." In the case of Asst. Commr. of Urban Land Tax, Madras v. Buckingham and Carnatic Co. Ltd. (AIR 1970 SC 169) (supra) the vires of the Madras Urban Land Tax Act of 1966 which imposed a tax on urban land at a percentage of the market value was questioned. It was contended that the State Legislature had trespassed upon the field of legislation covered by Entry 86, List I by adopting the annual or the capital value of lands and buildings as the measure. It was held (para 5):-- "..........Tax on lands and buildings is directly imposed on lands and buildings, and bears a definite relation to it.......... But the adoption of the annual or capital value of lands and buildings for determining tax liability will not make the fields of legislation under the two entries overlapping......." In Ramchand Maroti Mandwale v. Malkapur Municipal Council, Malkapur, AIR 1970 ....
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.... of the earth and up to the heavens) and hence the word land' which is nomen generalis-simurn, includes, not only the face of the earth, but everything under it or over it". (AIR 1975 SC 1234, Anant Mills Co. Ltd. v. State of Gujarat). In the case of City of Westminster v. Southern Rly. Co., (1936) A. C. 511, Lord Russel of Killowen observed:-- "Subject to special enactments, people are rated as occupiers of land, land being understood as including not only the surface of the earth but all strata above or below." In the case of Electric Telegraph Co. v. Salford Overseers, (1855) 11 Ex. 181 Pollock, C. B. said:-- "There is no distinction between the occupying land, by passing through a fixed point of space in the air to another fixed, point, or by passing in the same manner through land or water. Land extends upwards as well as downward. It is stated in Ryde on Rating, 11th Edn., at page 14 :-- "By far the largest number of persons rated are as 'occupiers of land or houses'. The word 'land' as used in the statute, must, be understood in the widest possible sense: it includes not only the surface of the earth, but everything under i....
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....ing statute as distinguished from the means or machinery or basis of taxation. In other words, the mode of assessment does not determine the character of tax." The tax is charged under Section 4 of the Cess Act. The provisions in Sections 5, 6 and 7 contain the mode, the manner or the machinery of taxation. It is therefore, difficult to accept the contention of the counsel for the petitioners that as the annual value of lands held for carrying on mining operations is calculated with reference to royalty or other payments paid or payable for the right of raising minerals, the cess levied under the Cess Act is not on lands but is royalty or a levy on royalty. 14. It was next contended that the Cess Act infringed, Article 14 of the Constitution by singling out lands held for carrying on mining operations and for hostile and unequal treatment. The Cess Act does not apply to houses or buildings. The First proviso to Section 4 excludes certain types of lands enumerated therein from the application of the Act. Whereas the rate of cess per year leviable on all lands except lands held for carrying on mining operations is 50 per cent of the annual value, in case of lands held for car....
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....ext of economic and tax matters, a classification made by the legislature is almost always sustained because the Court lacks both the expertise and the familiarity with the local problem so necessary for making a wise decision, with respect to raising and disposing public revenues ................" (See AIR 1975 SC 594, State of Karnataka v. D. P. Sharma. "It is well recognised that a Legislature does not have to tax everything in order to tax something. It can pick and choose districts, objects, persons, methods and even rates of taxation as long as it does so reasonably (Wills Constitutional law of the United States 587). A taxing statute is not invalid on the ground of discrimination merely because other objects could have been but are not taxed by the Legislature. (V. Venu-gopala Ravi Varma v. Union of India, AIR 1969 SC 1094). When a statute divides the objects of tax into groups or categories, (so) long as there is equality and uniformity within each group, the tax cannot be attacked on the ground of its being discriminatory although due to fortuitous circumstances or a particular situation some included in a class or group may get some advantage over others, pr....
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....nal basis for the classification, Article 14 will not stand in the way or such a classification resulting in unequal burdens on different classes of properties. But if the same class of property similarly situated is subjected to an incidence of taxation, which results in inquality, the law may be struck down as creating an inequality amongst holders of the same kind of property see Moopil Nair's case, AIR 1961 SC 552. The State has a wide discretion in selecting the persons or objects it will tax, and that a statute is not open to attack on the ground that it taxes some persons or objects and not others. It is only when within the range of its selection, the law operates unequally, and that cannot be justified on the basis of any valid, classification, that it would be violative of Article 14, (See AIR 1962 SC 1733). We are satisfied that there is an intelligible differentia distinguishing lands held for carrying on mining operations from other lands and the differentia has a rational relation to the objects sought to be achieved. The challenge to the Act on the ground that it was violative of Article 14, therefore, fails. The challenge fails also on another ground. There ....
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....l attribute of sovereignty and constitutional provisions relating to the power of taxation are regarded not as grant of power but as limitation upon the power which would otherwise be practically without limit But where the statute is plainly discriminatory or confiscatory or unconstitutional in nature, the tax can be struck down as unreasonable and violative of Article 19(1)(f). In Moopil Nair's ease (AIR 1961 SC 552) (supra), the vires of Travancore-Cochin Land Tax Act, 1955, as amended by Travancore-Cochin Land Tax (Amendment) Act of 1967, was impugned. It was alleged that under the Act the land tax at a flat rate of ₹ 2/- per acre had been imposed. One of the petitioners therein made a grievance that though he had 25,000 acres of forest land, he was making an income of ₹ 3,190/- only per year out of the forest. Under the amended law, he was required to pay ₹ 50,000/- a year, besides a sum of ₹ 4,000/- as tax on the surveyed portion of the said forest. Hence, his total liability in respect of the forest amounted to ₹ 54,000/- whereas his annual income was ₹ 3,100/-, without making any deduction towards expenses of management It was conten....
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....e. In our opinion, the land cess does not come within the mischief of Article 301. 17. It was also contended that the impost was violative of the terms and conditions contained in the lease deeds, viz., mining leases. We have already held that the Central Act is referable to Entry 54 of List I, whereas the Cess Act has been enacted under the powers conferred on ^e State Legislature by Entry 49 of List II. If the State Legislature has the legislative competence, the petitioners cannot make a grievance that in addition to the amounts stipulated under the lease deed, they will be obliged to pay the cess in respect of the lands held by them for mining operations. We have also shown that the Parliament has not the legislative competence to enact a provision for levy of tax on land over which mining operation is carried. Entry 54 is not an entry authorising imposition of tax. In fact, there is no provision in the Central Act or the Mineral Concession Rules which authorises imposition of tax. So, this ground also fails. 18. Mr. R. K. Mohapatra .appearing for Dr. Sarojini Pradhan contended that the parent Act sought to impose a fee; but by the amending Act of 1976, the Legislature had at....
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....he State. The contention is, therefore, devoid of substance. 20. It was urged that the Act was also violative of Article 14 by its denial for a fair hearing in course of assessment. It was submitted that whereas in cases of assessments made under Sections 9 and, 9-A remedy by way of appeal has been granted to the aggrieved party, such a remedy has been withheld in case of assessment under Section 9B of cess on lands held for carrying on mining operations. Repelling the attack the learned Advocate-General submitted that the assessment of cess was linked with and dependent upon the assessment of royalty. Determination of cess is not by way of an independent assessment but is only an arithmetical calculation basing upon the assessment of royalty. He further submitted that having regard to the scheme and the provisions of the Act and the Rules, provision containing a right of appeal was unnecessary and its absence did not prejudice the petitioners at all. Further the Act conferred revisional powers on the Board, of Revenue to revise any order passed under the Act. In Fatechand Himmatlal v. State of Maharashtra, AIR 1977 SC 1825, the Supreme Court observed (at page 1843) : "It ....
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....a was negatived by holding that since the levy was a percentage of the annual letting value of the lands and buildings which was determined by separate proceedings, it was not necessary to evolve an independent method for the purpose of assessment and levy of tax under the Cess Act. In our opinion, the aforesaid authorities squarely meet the challenge. The assessment of cess is not an independent exercise. Cess is quantified with reference to the royalty or dead rent, as the case may be. Once there is a determination of royalty or dead rent, quantification of the cess is an automatic process. Moreover, as was pointed out by the Supreme Court in Organo Chemical's case (AIR 1979 SC 1803) (supra), remedy nevertheless is available to the aggrieved person. The Board of Revenue under Section 19 has wide powers to revise any orders passed under the Act or the Rules. 21. Shri R. K. Mohapatra referred to the statement of objects and reasons of Act 42 of 1976, and contended that the provision was a mere device and the real object was to impose royalty. We have already indicated that the language of the provisions is clear. It is unnecessary to refer to the statement of objects and reas....