TaxTMI 
TaxTMI 
2020 (12) TMI 140
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....goods under Section 2(52) of Central Goods and Services Tax Act, 2017 and consequential notifications to the extent it levies tax on lotteries. The petitioner seeks declaration that the levy of tax on lottery is discriminatory and violative of Articles 14, 19(1)(g), 301 and 304 of the Constitution of India. 2. We need to notice certain background facts which has given rise to this writ petition. 2.1 The Parliament enacted the Lotteries (Regulation) Act, 1998 to regulate the lotteries and to provide for matters connected therewith and incidental thereto. Section 2(b) of the Act defines lottery which provides that "lottery" means a scheme, in whatever form and by whatever name called, for distribution of prizes by lot or chance to those persons participating in the chances of a prize by purchasing tickets. Section 4 provides that a State Government may organise, conduct or promote the lottery subject to conditions enumerate therein. Different States have been organizing and conducting lotteries in accordance with the aforesaid Act. It is to be noted that prior to parliamentary enactment for regulating the lotteries, different States have enacted legislation regulating the lotte....
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....h regard to lottery run by the State Government, value of supply of lottery was deemed to be 100/112 of the face value of the ticket or the prize as notified in the official gazette of the organising State, whichever is higher. With regard to lotteries authorised by the State Government value of supply of lottery was deemed to be 100/128. 2.5 The writ petitioner, an authorised agent for the state of Punjab for sale and distribution of lotteries organised by State of Punjab aggrieved by the provisions of Act No.12 of 2017 as well as notifications issued therein filed the present writ petition praying for following reliefs:- "a) By appropriate writ, order or direction, quash and set aside the definition of 'Goods' under Section 2(52) of the Central Goods and Services Tax Act, 2017 [Annexure P-18 (Pg.141 to 143)], Impugned Notifications 01/2017 Central Tax (Rate), 01/2017 [Annexure P-19 (Pg.144 to 148)], Integrated Tax (Rate), 01/201 [Annexure P-20 (Pg. 149 to 154)], and the State rate Notifications of the Respondent State of Punjab [Annexure P-21(Pg.155 to 157)] to the extent it levies tax on Lottery by declaring the same to be discriminatory and violative of Arti....
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....lottery is not an actionable claim as is now sought to be included in the definition of goods given in Section 2(52). The provisions of Act, 2017 are self-contradictory in as much as the definition of actionable claim is as per definition of Transfer of Property Act, which is only the claim and not the goods. Further, under the definition of goods, actionable claims have been included as goods under Section 2(52). It is further submitted that GST is being levied on the face value of the lottery tickets which is impermissible since the face value of the tickets also includes prize money to be reimbursed to the winners of the lottery tickets. Learned senior Counsel submits that meaning of goods as occurring in the Constitution of India has to be taken in its legal sense. The definition of goods as occurring in Sale of Goods Act, 1930 clearly excludes actionable claims from the definition of goods, which definition has been held to be definition of goods under the Constitution by this Court in State of Madras Vs. Gannon Dunkerley & Co., (Madras) Ltd., (1959) SCR 329. The attempt of including the actionable claim within the meaning of goods seems to be deliberate attempt to make the lo....
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....f not levying tax on other actionable claims apart from lottery, betting and gambling cannot be said to be discriminatory. It is submitted that Constitution Bench of this court in Sunrise Associates (supra) has held that an actionable claim is a movable property and goods in the wider sense. The definition of goods given in Section 2(52) of Act 2017 is in accord with the Constitution Bench judgment of this court in Sunrise Associates (supra) and the argument that definition of goods given in Section 2(52) is contrary to above Constitution Bench judgment in Sunrise Associates (supra) is misplaced. The definition of goods given under Article 366(12) of the Constitution is an inclusive definition. Article 366(12A) defines goods and services tax to mean tax on supply of goods or services or both except taxes on the supply of alcoholic liquor for human consumption. Lottery having been judicially held to be an actionable claim is covered within the meaning of term goods under section 2(52). The Union Parliament has the competence to levy GST on lotteries under article 246A of the Constitution. Under Article 279A the GST Council has approved the levy of GST on lottery tickets, hence, the ....
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....itution. Shri Sundaram further submits that in any event, the prize money in a lottery deducted from a lottery claim ought not to be taxed at all and the tax, if at all ought to be levied only on the invoice value, i.e., the transaction value of the lottery ticket or the lottery scheme after deducting the prize money. The lottery ticket has a zero value and is only a chance, which cannot be taxed. Shri Sundaram submits that lottery ticket is not even an actionable claim but only a chance, which is treated as an actionable claim by ratio of Constitution Bench judgment in Sunrise Associates (supra), which will not be a good within the meaning of Article 366(12) of the Constitution. He submits that since it is not a good under the Constitution, Union and the States had no right to tax. A Statute cannot bring in a definition something as good, which Constitution itself excludes. Exclusion of all actionable claims from levy of GST except three, i.e., lottery, betting and gambling is nothing but hostile discrimination. Shri Sundaram submits that when the lottery is being permitted by the States, it is a commercial activity. When the State itself organise a lottery, it is not pernicious. ....
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....endency of the writ petition now providing a uniform rate of lotteries organised by the States or authorised by the State having not been challenged in this writ petition, hence, petitioner reserve its right to challenge the notification dated 21.02.2020/02.03.2020 separately in appropriate proceedings. 11. We have considered the submissions of the learned counsel for the parties and have perused the records. 12. From the submissions of the learned counsel for the parties and materials on the record, following are the questions which arise for consideration in this writ petition:- (I) Whether the writ petition is not maintainable under Article 32 of the Constitution of India since the writ petition relates to lottery, which is res extra commercium and the petitioner cannot claim protection under Article 19(1)(g)? (II) Whether the inclusion of actionable claim in the definition of goods as given in Section 2(52) of Central Goods and Services Tax Act, 2017 is contrary to the legal meaning of goods and unconstitutional? (III) Whether the Constitution Bench judgment of this Court in Sunrise Associates (supra) in paragraphs 33, 40, 43 and 48 of the judgm....
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....ods and Services Tax Act, 2017 insofar as it imposes tax on the lottery. The grounds of challenge include violation of Article 14 of the Constitution of India. The levy of GST has been attacked as discriminatory. It is also submitted that there is a hostile discrimination in taxing only lottery, betting and gambling whereas leaving all other actionable claims from the taxing net as is evident by entry 6 of Schedule III of Act, 2017. 16. The writ petition alleging the violation of Article 14 specially with respect to a parliamentary Act can very well be entertained under Article 32. We may also notice that with regard to the matter of lottery itself, this Court had entertained a writ petition earlier under Article 32. Reference is made to judgment of this Court in H. Anraj and Ors. Vs. State of Maharashtra, (1984) 2 SCC 292 where the writ petitioner, who were agents for the sale of tickets for the lottery filed a writ petition questioning the ban imposed on the sale of lottery tickets within the State of Maharashtra. Even judgment of this Court in H. Anraj Vs. Government of Tamil Nadu, (1986) 1 SCC 414 was also a writ petition, which was heard alongwith a civil appeal questioning....
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.... movable property not in the possession, either actual or constructive, of the claimant, which the Civil Courts recognise as affording grounds for relief, whether such debt or beneficial interest be existent, accruing, conditional or contingent;" 22. Now, we may notice the definition of goods in the Central Goods of Services Tax Act, 2017 which definition is under challenge in the present writ petition. Section 2 sub­section (52) defines goods in the following words: "Section 2(52)- "goods" means every kind of movable property other than money and securities but includes actionable claim, growing crops, grass and things attached to or forming part of the land which are agreed to be severed before supply or under a contract of supply;" 23. Section 2(1) defines actionable claim in following words: "Section 2(1) "actionable claim" shall have the same meaning as assigned to it in section 3 of the Transfer of Property Act, 1882;" 24. The definition of goods as contained in the Sale of Goods Act, 1930 in Section 2(7) : "goods" means every kind of movable property other than actionable claims and money; whereas definition of goods in Section 2(52) in the Act....
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....tax on the value of materials used in works, as there is no transaction of sale in respect of those goods, and the provisions introduced by the Madras General Sales Tax(Amendment) Act, 1947, authorising the imposition of such tax are ultra vires. The High Court deciding the question in favour of the respondent held that expression sale of goods had the same meaning in Entry 48 which had in Sale of Goods Act, 1930. The State of Madras filed an appeal in this Court. The question which fell for consideration in the above case has been noticed in the judgment in the following words: "The sole question of determination in this appeal is whether the provisions of the Madras General Sales Tax Act are ultra vires, in so far as they seek to impose a tax on the supply of materials in execution of works contract treating it as a sale of goods by the contractor, and the answer to it must depend on the meaning to be given to the words "sale of goods" in Entry 48 in List II of Schedule VII to the Government of India Act, 1935...." 26. This Court laid down that the expression "sale of goods" in Entry 48 has to be interpreted in its legal sense. Following observation was made at page 3....
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....esent question. We have, no doubt, Art. 248 and Entry 97 in List I conferring residual power of legislation on Parliament, but clearly it could not have been intended that the center should have the power to tax with respect to works constructed in the States. In view of the fact that the State Legislatures had given to the expression "sale of goods" in Entry 48 a wider meaning than what it has in the Indian Sale of Goods Act, that States with sovereign powers have in recent times been enacting laws imposing tax on the use of materials in the construction of buildings, and that such a power should more properly be lodged with the States rather than the center, the Constitution might have given an inclusive definition of "sale" in Entry 54 so as to cover the extended sense. But our duty is to interpret the law as we find it, and having anxiously considered the question, we are of opinion that there is no sale as such of materials used in a building contract, and that the Provincial Legislatures had no competence to impose a tax thereon under Entry 48." 31. The ratio of the above judgment which is heavily relied by Shri Srivastava is that this Court laid down that legal meaning of....
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.... to enlarge the scope of tax on sale or purchase of goods wherever it occurs in the Constitution so that it may include within its scope the transfer, delivery or supply of goods that may take place under any of the transactions referred to in Sub-Clauses (a) to (f) thereof wherever such transfer, delivery of supply becomes subject to levy. of sales tax. So construed the expression tax on the sale or purchase of goods in Entry 54 of the State List, therefore, includes a tax on the transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract also. The tax leviable by virtue of Sub-clause (b) of Clause (29-A) of Article 366 of the Constitution thus becomes subject to the same discipline to which any levy under Entry 54 of the State List is made subject to under the Constitution." 30. Having regard to the observations referred to above and the stand of the parties during the course of arguments before us, we do not consider it appropriate to reopen the issues which ; are covered by the decision in Builders' Association case (supra) and we will, therefore, deal with the matter in accordance with the law as laid down i....
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.... goods. 35. In The State of Madras v. Gannon Dunkerley & Co., (supra) this Court was concerned with the Provincial Legislatures under Entry 48 in List II in Schedule VII of the Government of India Act, 1935. We have extracted the observations made by this Court at page 426. This Court at page 426 of the judgment held that none of the Provincial Legislatures could have exercised the power conferred to make law with respect to sale of goods in the Lists, to impose a tax on construction contracts. This Court further observed that before such a law could be enacted it would have been necessary to have had recourse to the residual powers of the Governor-General under under Section 104 of the Act. This Court has further observed that it has no doubt, Article 248 and Entry 97 of List I conferring residual powers of legislation on Parliament, but clearly it could not have been intended that Centre should have power to tax with respect to works constructed in the States. 36. The Act, 2017 is an Act of Parliament in exercise of power of Parliament as conferred under Article 246A of the Constitution. Article 246A is extracted for ready reference: "Article 246A. Special provisio....
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....right to win the prize, dependent on chance. 5. In the case of Vikas Sales Corpn. v. Commr. Of Commercial Taxes (1996 (4) SCC 433), a Bench of three learned Judges agreed with the decision in H. Anraj. It is, therefore, necessary that these appeals should be heard by a Constitution Bench." 39. Before we further look into the judgment of this Court in Sunrise Associates, we need to notice very briefly judgment of this Court in H. Anraj. In the above case the question arose out of the levy of tax on sales of lottery tickets under Tamil Nadu General Sales Act 1959. A writ petition was filed questioning the levy of tax imposed on sale of lottery tickets before this Court. The contention which was urged before this Court for challenging levy has been noticed in paragraph 5 of the judgment in the following words: "5. ....Counsel pointed out that under the charging provision contained in both the Acts (s. 3 of the Tamil Nadu Act 1959 and Section 4 of the Bengal Act 1941) the taxable event is the sale of goods (here lottery tickets) and the levy is imposed upon the taxable turnover of every dealer in regard to the sales of lottery tickets and therefore, quite clearly, ....
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.... the Seventh Schedule and therefore, we think it unnecessary to go into the validity of the alternative submission made by the learned Attorney General that legislative competence for enacting the impugned Amendments would also be there under Entry 62 of List II in the Seventh Schedule of the Constitution." 41. As noted above the judgment of H Anraj came to be questioned. A Bench of three Judges in Vikas Sales Corporation and another vs. Commissioner of Commercial Taxes and another, (1996) 4 SCC 433, agreed with the decision of H Anaraj necessitating reference before the Constitution Bench in Sunrise Associates, the Constitution Bench noticed the question which arose before the Constitution Bench. In paragraph 29 it noticed that "only question we are called upon to answer is whatever the decision in H Anaraj that lottery tickets are "goods" for the purposes of Article 366(29A)(a) of the Constitution and the State sales tax laws, was correct". The Constitution Bench in paragraph 33 observed that to the extent that the lottery ticket evidenced the right to claim the prize, it was not goods but an actionable claim and therefore not "goods" under the sales tax laws. In paragraph 33 ....
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..... Maharajadhiraja Sir Kameshwar Singh, SCR at p.910 (1952) SCR 889). A right to the credit in a provident fund account has also' been held to an actionable claim (Official Trustee, Bengal v. L. Chippendale, AIR 1944 Cal 335; Bhupati Mohan Das v. Phanindra Chandra Chakravarty and Anr., AIR 1935 Cal 756. In our opinion a sale of a lottery ticket also amounts to the transfer of an actionable claim." 44. Further in paragraphs 46 and 48 this Court held lottery to be an actionable claim. Paragraphs 46 and 48 are to the following effect: "46. There is no value in the mere right to participate in the draw and the purchaser does not pay for the right to participate. The consideration is paid for the chance to win. There is therefore no distinction between the two rights. The right to participate being an inseparable part of the chance to win is therefore part of an actionable claim. 48. Even if the right to participate is assumed to be a separate right, there is no sale of goods within the meaning of sales tax statutes when that right is transferred. When H. Anraj said that the right to participate was a beneficial interest in movable property, it did not define wha....
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....ments which are not part of the ratio decidendi are distinguished as obiter dicta and and are not authoritative. .... 11. Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative. ...." 48. It cannot be said that the question as to whether lottery is a goods or actionable claim had not arisen in the decision in Sunrise Associates. When an item was covered by excluded category, the said conclusion could have been arisen only after consideration of the definition and the exclusionary clause. We, thus, are not in agreement with the submission of the learned counsel for the petitioner that the observations of the Constitution Bench holding lottery as actionable claim is only obiter dicta and not binding. The Constitution Bench in Sunrise Associates has categorically held that lottery is actionable claim after due consideration which is ratio of the judgment. When Section 2(52) of Act, 2017 expanded the definition of goods by including actionable claim also, the said definition in Section 2(52) is in the line with the Constitution Bench pronouncement in Sunrise Associates and no exception can be taken to the defin....
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....ntal rights of the Company under Article 19(1) (f) and (g) of the Constitution." 51. This Court held that consumption by an owner of goods in which he deals is not a sale within the meaning of sale of goods. It was held that extended definition, which includes consumption by a retail dealer of motor spirit or lubricants is beyond the competence of the State legislature. Following was laid down by this Court:- "Consumption by an owner of goods in which he deals is therefore not a sale within the meaning of the Sale of Goods Act and therefore it is not "sale of goods" within the meaning of Entry 54 List II Schedule VII of the Constitution. The legislative power for levying tax on sale of goods being restricted to enacting legislation for levying tax on transactions which conform to the definition of sale of goods within the meaning of the Sale of Goods Act, 1930, the extended definition which includes consumption by a retail dealer himself of motor spirit or lubricants sold to him for retail sale" is beyond the competence of the State legislature. But the clause in the definition in, Section (1) "and includes the consumption by a retail dealer himself or on his behalf of ....
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.... 1922. It was contended before this court that a loan advanced to a shareholder by the company cannot, in any legitimate sense, be treated as his income; and so, the artificial manner in which such dividend is ordered to be treated as income by the impugned provision is not justified. It is true that this Court has laid down that Parliament cannot choose to tax as income an item which in no rational sense can be regarded as a citizen's income. Following was observed:- "This doctrine does not, however, mean that Parliament can choose to tax as income an item which in no rational sense can be regarded as a citizen's income. The item taxed should rationally be capable of being considered as the income of a citizen. But in considering the question as to whether a particular item in the hands of a citizen can be regarded as his income or not, it would be inappropriate to apply the tests traditionally prescribed by the Income Tax Act as such." 56. This Court held that legislature has not travelled beyond the legislative field while enacting the impugned provision. Following was observed:- "...........................There must no doubt be some rational connection....
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....n Section 2(52). The Constitution Bench of this Court in Sunrise Associates (supra) has held that actionable claims are includible in the definition of goods and had actionable claims were not includible there was no need for excluding them. The Constitution Bench held "were actionable claims, etc., not otherwise includible in the definition of "goods", there was no need for excluding them. In other words, actionable claims are "goods" but not for the purpose of Sales Tax Acts and but for this statutory exclusion, an actionable claim would be "goods" or the subject-matter of ownership". 59. Thus, in view of what has been said above by the Constitution Bench, the submission of the petitioner that actionable claims have been artificially included in the definition of goods cannot be accepted. The Constitution Bench has clearly laid down that actionable claims are goods. We, thus, do not agree with the submission of Shri Shrivastava that Parliament has exceeded its jurisdiction in including actionable claims in the definition of "goods" under Section 2(52). 60. We, thus, answer Question Nos.II and III in the following manner: Answer No.II 61. The inclusion of actionable cl....
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....g different rates of sales tax. For instance, the object may be to encourage a certain trade or industry in the context of the State policy for economic growth, and a lower rate would be considered justified in the case of such a commodity. There may be several such considerations bearing directly on the choice of the rate of sales tax, and so long as there is good reason for making the distinction from other commodities no complaint can be made. What the actual rate should be is not a matter for the courts to determine generally, but where a distinction is made between commodities falling in the same category a question arises at once before a court whether there is justification for the discrimination..........................." 65. Another judgment laying down the same preposition as relied by learned counsel for the petitioner is State of Uttar Pradesh and Ors. Vs. Deepak Fertilizers & Petrochemical Corporation Ltd., (2007) 10 SCC 342. 66. There can be no dispute to the above preposition laid down by this Court. The question to be answered is as to whether there is any rational reason for taking out only three actionable claims, i.e., lottery, betting and gambling while l....
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....ancient country's trade, commerce or intercourse to be declared as free under Article 301. It is not our purpose nor is it necessary for us in deciding this case to attempt an exhaustive definition of the word "trade", "business", or "intercourse". We are, however, clearly of opinion that whatever else may or may not be regarded as falling within the meaning of these words, gambling cannot certainly be taken as one of them. We are convinced and satisfied that the real purpose of Articles 19(1)(g) and 301 could not possibly have been to guarantee or declare the freedom of gambling. Gambling activities from their very nature and in essence are extracommercium although the external forms, formalities and instruments of trade may be employed and they are not protected either by Article 19(1)(g) or Article 301 of our Constitution. 46. For the reasons stated above, we have come to the conclusion that the impugned law is a law with respect to betting and gambling under Entry 34 and the impugned taxing section is a law with respect to tax on betting and gambling under Entry 62 and that it was within the legislative competence of the State Legislature to have enacted it. There ....
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....a duty of the State to strive to promote the welfare of the people by securing and protecting, as effectively as it may, a social order in which justice, social, economic and political, shall inform all the institutions of the national life. The Constitution Bench in State of Bombay Vs. R.M.D. Chamarbaugwala and Anr. (supra) has clearly stated that Constitution makers who set up an ideal welfare State have never intended to elevate betting and gambling on the level of country's trade or business or commerce. In this country, the aforesaid were never accorded recognition of trade, business or commerce and were always regulated and taxing the lottery, gambling and betting was with the objective as noted by the Constitution Bench in the case of State of Bombay Vs. R.M.D. Chamarbaugwala and Anr. (supra), we, thus, do not accept the submission of the petitioner that there is any hostile discrimination in taxing the lottery, betting and gambling and not taxing other actionable claims. The rationale to tax the aforesaid is easily comprehensible as noted above. Hence, we do not find any violation of Article 14 in Item No. 6 of Schedule III of the Act, 2017. Question No.5 72. The ....
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....are consumed in the process of execution of a works contract item No. (v) and other similar expenses for labour and services will have to be excluded as charges for supply of labour and services. ..." 73. We may first notice the statutory scheme under the Act, 2017 and Rules framed thereunder regarding determination of value of supply. Section 15 of the Act deals with value of taxable supply. Section 15 (1) to (4) which is relevant for the present case is as follows: Section 15. (1) The value of a supply of goods or services or both shall be the transaction value, which is the price actually paid or payable for the said supply of goods or services or both where the supplier and the recipient of the supply are not related and the price is the sole consideration for the supply. (2) The value of supply shall include--- (a) any taxes, duties, cesses, fees and charges levied under any law for the time being in force other than this Act, the State Goods and Services Tax Act, the Union Territory Goods and Services Tax Act and the Goods and Services Tax (Compensation to States) Act, if charged separately by the supplier; (b) any amount that the suppli....
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....ce value of ticket or of the price as notified in the Official Gazette by the organising State, whichever is higher. (b) The value of supply of lottery authorised by State Governments shall be deemed to be 100/128 of the face value of ticket or of the price as notified in the Official Gazette by the organising State, whichever is higher. Explanation:- For the purposes of this subrule, the expressions­ (a) lottery run by State Governments―means a lottery not allowed to be sold in any State other than the organizing State; (b) lottery authorised by State "Governments means a lottery which is" authorised to be sold in State(s) other than the organising State also; and (c) Organising State has the same meaning― as assigned to it in clause (f) of sub­rule (1) of rule 2 of the Lotteries (Regulation) Rules, 2010. (3) The value of supply of actionable claim in the form of chance to win in betting, gambling or horse racing in a race club shall be 100% of the face value of the bet or the amount paid into the totalisator." 75. Rule 31A has now been amended vide notification dated 02.03.2020 by which following sub-rul....
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....excluded in the value of taxable supply cannot be added by judicial interpretation. 79. Further, Rule 31A as noted above, sub-rule (2) as amended clearly provides that value of supply shall be deemed to be 100/128 of the face value of ticket or of the prize as notified in the Official Gazette by the Organising State, whichever is higher. Learned Additional Solicitor General has explained the working of Rule 31A of Rules by giving an example: "For example, if Rs. 100 is the face value of lottery ticket, 28% GST is levied only on Rs. 78.125[(100*28)/128]. GST amount will be 21.875. Therefore, Rs. 100 includes GST of 21.875 on the taxable value of Rs. 78.125. This is a mechanism to split the face value of Rs. 100 in two parts (A and B). A is the transaction value. B is GST on A. The formula as above is to come to A by reverse calculation." 80. The value of taxable supply is a matter of statutory regulation and when the value is to be transaction value which is to be determined as per Section 15 it is not permissible to compute the value of taxable supply by excluding prize which has been contemplated in the statutory scheme. When prize paid by the distributor/agent is n....