R. Abdul Quader and Co. Vs. Sales Tax
Officer, Hyderabad  INSC 42 (21 February 1964)
21/02/1964 WANCHOO, K.N.
GUPTA, K.C. DAS SHAH, J.C.
AYYANGAR, N. RAJAGOPALA
CITATION: 1964 AIR 922 1964 SCR (6) 867
R 1968 SC 445 (7) R 1971 SC 946 (5,6,7,9) F
1973 SC1333 (1,4) RF 1975 SC 198 (10) F 1975 SC1991 (9) RF 1977 SC2279 (57) D
1985 SC 218 (16,19) RF 1986 SC 178 (2) O 1987 SC 27 (3)
Sales Tax-Tax Collected otherwise than In
accordance with the Act-Provision enabling the Government to recover such tax
collected-Not within the competence of State Legislature--Constitution of
India, Schedule VII, Entry 26 and 54 of List II-Hyderabad General Sales Tax
Act, 1950 (XIV of 1950), s. 11.
The appellant collected sales tax from the
purchasers of betel leaves in connection with the sales made by it. But it did
not pay the amount collected to the Government. The Government directed the
appellant to pay the amount to the Government and it thereupon filed a writ
petition in the High Court questioning the validity of s. 11(2) of the
Hyderabad General Sales Tax Act 1950.
The main contention of the appellant before
the High Court was that s. 11(2) of the Act which authorises the Government to
recover a tax collected without the authority of law was beyond the competence
of the State Legislature because a tax collected without the authority of law
would not be a tax levied under the law and it would therefore not be open to
the State to collect under the authority of a law enacted under the Entry 54 of
List II of the VII Schedule to the Constitution any such amount as it was not a
tax on sale or purchase of goods. The High Court held that a. 11(2) was good-as
an ancillary provision with regard to the collection of sales or purchase tax
and therefore incidental to the power under Entry 54, List II. The High Court
also held that even if s. 11(2) cannot be justified under that entry it could
be justified under Entry 26, List II and in the result the writ petition was
dismissed. The present appeal is by way of special leave granted by this Court.
Held: (i) It cannot be said that the State
Legislature was directly legislating for the imposition of sales or purchase
tax under Entry 54, list II when it made the provisions of a. 11(2) for on the
face of the provisions the amount, though collected by way of tax was not
exigible as tax under the law.
(ii) It is true that the heads of legislation
in the various lists in the Seventh Schedule should be interpreted widely so as
to take in all matters which are of a character incidental to the topic
mentioned therein. Even so there is a limit to such incidental or ancillary
powers These have to be exercised in aid of the than topic of legislation,
which in the present case is a tax on sale or purchase of goods.
The ambit of ancillary or incidental powers
does not so to the extent of permitting the legislature to provide that though
the amount collected, may be wrongly, by way of tax is not exigible under the
law as made under the relevant taxing entry, it shall still be paid over to the
Government as if it were a tax. Therefore the provision contained in a. 11(2)
cannot be made under Entry 54, List II and cannot be justified as incidental or
ancillary provisions permitted under that Entry.
(iii) Section 11(2) cannot be justified as
providing for a for the breach of any provision of the Act.
(iv) Entry 26, List II deals with trade and
commerce and has nothing to do with taxing or recovering amount realised
wrongly as tax. There is no element of regulation of trade and commerce in a
provision like s. 11(2) and therefore that section cannot be justified under
869 (v) The provision in s. 20(c) is also
invalid as it is merely consequential to s. 11(2).
The Orient Papers Mills Ltd. v. State of
Orissa,  1 S.C.R. 549, distinguished.
State of Bombay v. United Motors (India)
Ltd.,  S.C.R.
1069, referred to.
Indian Aluminium Co. v. State of Madras,
(1962) XIII Sales Tax Cases 967. held to be wrongly decided.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 760 of 1962.
Appeal by special leave from the judgment and
order dated July 16, 1959 of the Andhra Pradesh High Court in Writ Petition No.
1123 of 1956.
K. R. Chaudhuri, for the appellant.
A. Ranganadham Chetty and B. R. G. K. Achar,
for the respondent.
February 21, 1964. The Judgment of the Court
was delivered by WANCHOO j.-This is an appeal by special leave against the
order of the Andhra Pradesh High Court. The appellant filed a writ petition in
the High Court questioning the validity of s. 11 (2) of the Hyderabad General
Sales Tax Act, No. XIV of 1950, (hereinafter referred to as the Act). The
material facts on which the petition was based were these. The appellant acted
as agent in the then State of Hyderabad to both resident and non-resident
principals in regard to sale of betel leaves. Under the Act betel leaves were
taxable at the purchase point from May 1, 1953, by virtue of a notification in
that behalf. We are here concerned with the assessment period from May 1, 1953
to March 31, 1954, covered by the assessment year 1953-54. The appellant
collected sales tax from the purchasers in connection with the sales made by it
on the basis that the incident of the tax lay on the sellers and assured the
purchasers that after paying the tax to the appellant, there would be no
further liability on them. After realising the tax, however, the appellant did
not pay the amount realised to the Government but kept it in the suspense
account of its principals, namely, 870 the purchasers. When the accounts were
scrutinized by the Sales Tax Department, this was discovered and thereupon the
appellant was called upon to pay the amounts realised to the Government. The
appellant however objected to the payment on the ground that it was the seller
and the relevant notification for the relevant period imposed tax at the
purchase point, i.e. on the purchaser. This objection was over-ruled and the
appellant was directed to pay the amount to Government.
The main contention raised on behalf of the
appellant in the High Court was that s. 11 (2) of the Act, which authorised the
Government to recover from any person, who had collected or collects, after May
1, 1950, any amount by way of tax otherwise than in accordance with *.he
provisions of the Act, as arrears of land revenue, was beyond the legislative
competance of the State legislature. The argument was that the Act was passed
under Entry 54 of List 11 of the Seventh Schedule to the Constitution, which
enables the State legislature to enact a law taxing transactions of sale or
purchase of goods. The entry therefore vests power in the State legislature to
make a law for taxing sales and purchases of goods and for making all necessary
incidental provisions in that behalf for the levy and collection of sales or
purchase tax. But it was urged that that entry did not empower the State
legislature to enact a law by which a dealer who may have collected a tax
without authority is required to hand over the amount to Government, as any
collection without the authority of law would not be a tax levied under the law
and it would therefore not be open to the State to collect under the authority
of a law enacted under Entry 54 of List II any such amount as it was not a tax
on sale or purchase of goods. The High Court held s. 11 (2) good as an
ancillary provision with regard to the collection of sales or purchase tax and
therefore incidental to the taxing power under Entry 54 of List 11. Further the
High Court took the view that assuming that Entry 54 of List II could not
sustain s. 11 (2), it could be sustained under Entry 26 of List H. Consequently
the writ petition was dismissed. The High Court having refused a certificate to
appeal to this Court, the appellant obtained special leave and that is how the
matter has come up be-fore us.
871 It is necessary to read s. II of the Act
in order to appreciate the point urged on behalf of the appellant. Section 11
is in these terms:1 1 (1) No person who is not registered as a dealer &hall
collect any amount by way of tax under this Act nor shall a registered dealer
make any such collection before the 1st day of May, 1950, except in accordance
with such conditions and restrictions, if any, as may be prescribed Provided
that Government may exempt persons who are not registered dealers from the
provisions of this sub-section until such date, not being later than the 1st
day of June, 1950, as Government may direct.
(2) Notwithstanding to the contrary contained
in any order of an officer or tribunal or judgment, decree or order of a Court,
every person who has collected or collects on or before 1st May, 1950, any
amount by way of tax otherwise than in accordance with the provisions of this
Act shall pay over to the Government within such time and in such manner as may
be prescribed the amount so collected by him. and in default of such payment they
said amount shall be recovered from him as if it were arrears of land
revenue." It will be seen that s. 11 (1) forbids an unregistered dealer
from collecting any amount by way of tax under the Act. That provision however
does not apply in the present case, for the appellant is admittedly a
Further s. II (1) lays down that a registered
dealer shall not make any such collection before May 1, 1950, except in
accordance with such conditions and restrictions, if any, as may be prescribed.
This provision again does not apply, for we are not concerned here with any
collection made by the appellant before May 1, 1950. The prohibition therefore
of s. 11 (1) did not apply to the appellant. Then comes s. 11 (2). It applies
to collections made after May 1, 1950 by any person whether a registered dealer
or otherwise and lays down that any amount collected by way of tax otherwise
than in accordance with the provisions of the Act shall be paid over to 872 the
Government and in default of such payment, the said amount shall be recovered
from such person as if it were arrears of land revenue. It is clear from the
words "otherwise than in accordance with the provisions of this Act"
that though the amount may have been collected by way of tax it was not
exigible as tax under the Act. Section 11 (2) thus provides that amounts
collected by way of tax though not exigible as tax under the Act shall be paid
over to Government, and if not paid over they shall be recovered from such
person as if they were arrears of land revenue.
Clearly therefore s, 11 (2) as it stands
provides for recovery of an amount collected by way of tax as arrears of land
revenue though the amount was not due as tax under the Act.
The first question therefore that falls for
consideration is whether it was open to the State legislature under its powers
under Entry 54 of List II to make a provision to the effect that money
collected by way of tax, even though it is not due as a tax under the Act,
shall be made over to Government. Now it is clear that the sums so collected by
way of tax are not in fact tax exigible under the Act. So it cannot be said
that the State legislature was directly legislating for the imposition of sales
or purchase tax under Entry 54 of List II when it made such a provision, for on
the face of the provision, the amount, though collected by way of tax. was not
exigible as tax under the law. The provision however is attempted to be
justified on the ground that though it may not be open to a State legislature
to make provision for the recovery of an amount which is not a tax under Entry
54 of List 11 in a law made for that purpose, it would still be open to the legislature
to provide for paying over all the amounts collected by way of tax by persons,
even though they really are not exigible as tax, as part of the incidental and
ancillary power to make provision for the levy and collection of such tax. Now
there is no dispute that the heads of legislation in the various Lists in the
Seventh Schedule should be interpreted widely so as to take in all matters
which are of a character incidental to the topics mentioned therein. Even so,
there is a limit to such incidental or ancillary power flowing from the
legislative entries in the various Lists in the Seventh Schedule. These
incidental and ancillary powers have to be exercised in aid of the main topic
of legislation, 873 which in the present case, is a tax on sale or purchase of
goods. All powers necessary for the levy and collection of the tax concerned
and for seeing that the tax is not evaded are comprised within the ambit of the
legislative entry as ancillary or incidental. But where the legislation under
the relevant entry proceeds on the basis that the amount concerned is not a tax
exigible under the law made under that entry, but even so lays down that though
it is not exigible under the law, it shall be paid over to Government, merely
because some dealers by mistake or otherwise have collected it as tax, it is
difficult to see how such provision can be ancillary or incidental to the
collection of tax legitimately due under a law made under the relevant taxing
entry. We do not think that the ambit of ancillary or incidental power goes to
the extent of permitting the legislature to provide that though the amount
collected may be wrongly-by way of tax is not exigible under the law as made
under the relevant taxing entry, it shall still be -)aid over to Government, as
if it were a tax. The legislature cannot under Entry 54 of List II make a
provision to the effect that even though a certain amount collected is not a
tax on the sale or purchase of goods as laid down by the law, it will still be
collected as if it was such a tax.
This is what s. 11 (2) has provided. Such a
provision cannot in our opinion be treated as coming within incidental or
ancillary powers which the legislature has got under the relevant taxing entry
to ensure that the tax is levied and collected and that its evasion becomes
impossible. We are therefore of opinion that the provision contained in s. 1 1
(2) cannot be made under Entry 54 of List 11 and cannot be justified even as an
incidental or ancillary provision permitted under that entry.
An attempt was made to justify the provision
as providing for a penalty. But as we read s. 11 (2) we cannot find anything in
it to justify that it is a penalty for breach of any prohibition in the Act.
Penalties imposed under taxing statutes are generally with respect to attempts
at evasion of taxes or to default in the payment of taxes properly levied (see
ss. 28 and 46 of the Indian Income Tax Act.
1922). The Act also provides for penalties,
for example s. 19 and s. 20. The latter section makes certain acts or omissions
of an 874 assessee offences punishable by a magistrate subject to com position
under s. 21. Section 11 (2) in our opinion has nothing to do with penalties and
cannot be justified as a penalty on the dealer. Actually s. 20 makes provision
in cl. (b) for penalty in case of breach of s. II (1) and makes the person
committing a breach of that provision liable, on conviction by a Magistrate of
the first class, to a fine.
We are therefore of opinion that s. 11 (2)
cannot be justified under Entry 54 of List II either as a provision for levying
the tax or as an incidental or ancillary provision relating to the collection
of tax. In this connection we may refer to cl. (c) of s. 20, which provides
that any person who fails "to pay the amounts specified in sub-section (2)
of section 11 within the prescribed time" shall on a conviction by a
Magistrate be liable to fine. It is remarkable that this provision makes the
person punishable for his failure to pay the amount which is not authorised as
a tax at all under the law, to Government. It does not provide for a penalty
collecting the amount wrongly by way of tax from purchasers which may have been
justified as a penalty for the purpose of carrying out the objects of the
taxing legislation. If a dealer has collected anything from a purchaser which
is not authorised by the taxing law, that is a matter between him and the
purchaser, and the purchaser may be entitled to recover the amount from the
dealer. But unless the money so collected is due as a tax, the State cannot by
law make it recoverable simply because it has been wrongly collected by the
dealer. This cannot be done directly for it is not a tax at all within the
meaning of Entry 54 of ,List II, nor can the State legislature under the guise
of incidental or ancillary power do indirectly what it cannot do directly. We
are therefore of opinion that s.11 (2) is not within the competence of the
State legislature under Entry 54 of List II.
The respondent in this connection relies on
the decision of this Court in The Orient Paper Mills Limited v. The State of
Orissa("). That case in our opinion has no application to the facts of the
present case. In that case the dealer had been assessed to tax and had paid the
tax. Later in view of the judgment of this Court in State of Bombay v. The
United Motors (India) Limited(2) the amounts paid in (1)  1 S. C. R. 549.
(2)  S. C. R. 1069.
875 respect of goods despatched for
consumption outside the State were held -to be not taxable. The dealer then
applied for refund of tax, which was held to be not exigible. The refund was
refused and and the dealer went to the High Court by a writ petition claiming
that it was entitled to refund under s. 14 of the Orissa Sales Tax Act (which
was the law under consideration in that case). The High Court allowed the
petition in part and there were appeals to this Court both by the dealer and
the State. In the meantime, the Orissa legislature amended the law, by
introducing s. 14A, in the principal Act, which provided that refund could be
claimed only by a person from whom the dealer had actually realised the amount
as tax. That provision was challenged in this Court but was upheld on the
ground that it came within the incidental power arising out of Entry 54 of List
11. That matter dealt with a question of
refund and it cannot be doubted that refund of the tax collected is always a
matter covered by incidental and ancillary powers relating to the levy and
collection of tax. We are not dealing with a case of refund in the present case.
What s. II (2) provides is that something collected by way of tax, though it is
not really due as a tax under the law enacted under Entry 54 of List II must be
paid to the Government. This situation in our opinion is entirely different
from the situation in the Orient Paper Mills Limited's case(").
The respondent further relies on a decision
of the Madras High Court in Indian Aluminium Co. v. The State of Madras(2).
That decision was with respect to s. 8-B of the Madras General Sales Tax Act of
1939 as amended by Madras Act 1 of 1957. Though the words in s. 8-B (2) were
not exactly the same as the words in s. 11 (2), with which we are concerned
here, the provision in substance was to the same effect as s. 11 (2). In view
of what we have said above, that decision must be held to be incorrect.
Lastly, we come to the contention of the
respondent that s.
11 (2) is within the legislative competence
of the State legislature in view of Entry 26 of List 11. That entry deals with
"trade and commerce within the State subject to the provisions of entry 33
of List III". It is well settled that (1)  1 S.C.R. 549.
(2)  XIII S.T.C. 967.
876 taxing entries in the legislative Lists I
and II of the Seventh Schedule are entirely separate from other entries.
Entry 26 of List 11 deals with trade and
commerce and has nothing to do with taxing or recovering amounts realised
wrongly as tax. It is said that s. 11 (2) regulates trade and commerce and the
State legislature therefore was competent under Entry 26 of List II to enact
it. We have not been able to understand what such a provision has to do with
the regulation of trade and commerce; it can only be justified as a provision
ancillary to a taxing statute. If it cannot be so justified-as we hold that it
cannot-we are unable to uphold it as regulating trade and commerce under Entry
26 of List II, There is in our opinion no element of regulation of trade and
commerce in a provision like s, 11 (2).
We are therefore of opinion that the State
legislature was Incompetent to enact a provision like s. 11 (2). We may also
add that the provision contained in s. 20(c), being consequential to s. 11 (2)
will fall along with it. In consequence it was not open to the Sales Tax
Officer to ask the appellant to make over what he had collected from the
purchasers wrongly as sales tax. It is not disputed, as appears from the final
assessment order of the Sales Tax Officer, that the appellant was not liable to
pay the amount as sales tax for the relevant period. We therefore allow the
appeal and quash the assessment order dated September 27, 1956 insofar as it is based on s. II (2). The appellant will get his costs in this Court as
well as in the High Court.