2001 (6) TMI 801 - HC - VAT and Sales Tax

Summary

Issues Involved:
1. Legislative competence of the Kerala Finance Act, 1994.
2. Violation of Articles 301 and 304 of the Constitution.
3. Violation of Articles 19(1)(g) and 14 of the Constitution.
4. Nature of the tax as regulatory or compensatory.

Detailed Analysis:

1. Legislative Competence of the Kerala Finance Act, 1994:
The petitioners argued that the Kerala Finance Act, 1994, which amended the Kerala Tax on Luxuries in Hotels and Lodging Houses Act, 1976, was beyond the legislative competence of the State Legislature. They contended that the Act was ultra vires Article 286 of the Constitution read with Article 366(29A)(f) and Section 15 of the Central Sales Tax Act, 1956. The learned single Judge, however, held that the Act fell under Entry 62, List II of the Seventh Schedule to the Constitution, which pertains to "Taxes on luxuries, including taxes on entertainments, amusements, betting, and gambling." This view was upheld by the appellate court, which concluded that the impugned Act was within the legislative competence of the State Legislature.

2. Violation of Articles 301 and 304 of the Constitution:
The petitioners contended that the impugned Act violated Articles 301 and 304 of the Constitution, which guarantee the freedom of trade, commerce, and intercourse throughout the territory of India. Article 301 states that trade, commerce, and intercourse shall be free, while Article 304 allows States to impose reasonable restrictions on this freedom in the public interest, provided the previous sanction of the President is obtained. The court found that the luxury tax on cigarettes imposed by the Act constituted a direct and immediate restriction on the free flow of trade and commerce, thereby violating Article 301. Since no previous sanction of the President was obtained, the Act could not be saved by Article 304(b).

3. Violation of Articles 19(1)(g) and 14 of the Constitution:
The petitioners also argued that the amended provisions were violative of Articles 19(1)(g) and 14 of the Constitution. Article 19(1)(g) guarantees the right to practice any profession or to carry on any occupation, trade, or business, while Article 14 ensures equality before the law. The learned single Judge rejected these contentions, and the appellate court did not find it necessary to address them in detail, focusing instead on the violation of Articles 301 and 304.

4. Nature of the Tax as Regulatory or Compensatory:
The State contended that the tax was regulatory or compensatory in nature and therefore not violative of Article 301. The court referred to the principles laid down in Automobile Transport (Rajasthan) Ltd. v. State of Rajasthan, which established that regulatory measures or compensatory taxes for the use of trading facilities do not fall within the restrictions contemplated by Article 301. However, the court found no material evidence to show that the luxury tax was imposed as a charge for a convenience or service provided by the State. Therefore, the tax could not be described as regulatory or compensatory.

Conclusion:
The court upheld the view of the learned single Judge that the impugned provisions under Section 4A of the Kerala Tax on Luxuries Act, 1976, and the Schedule thereto, as amended by the Kerala Finance Bill, 1994, were unconstitutional for being violative of Article 301 of the Constitution. The contention against the legislative competence of the State Legislature was rejected. Consequently, all four writ appeals were dismissed.