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1961 (4) TMI 87 - SC - Indian LawsWhether the imposition in the present caw offends Art. 276 or 301 of the Constitution ? Whether the failure to notify the final resolution of the imposition of the tax in the Government Gazette is fatal to the tax ? Held that - The answer to the first question referred is that the impugned octroi duty does not contravene the provisions of Arts. 276 and 301. This case was sought to be distinguished on the ground that the words there were all goods other than and those words would comprise every article which was not specifically mentioned in the Schedule. We are unable to accept this distinction because even though the words used in the present statute are different the combined effect of ss. 97 and 130 and Part V of Schedule III including Class VIII is that the words are of very general nature and would have the same effect as if all articles were intended to be and were included. In view of this it is unnecessary to discuss the second contention. Appeal dismissed.
Issues Involved:
1. Whether the imposition in the present case offends Article 276 or 301 of the Constitution. 2. Whether the failure to notify the final resolution of the imposition of the tax in the Government Gazette is fatal to the tax. Detailed Analysis: Issue 1: Whether the imposition in the present case offends Article 276 or 301 of the Constitution. Article 276: The appellants contended that the impugned tax contravenes Article 276(2) as it exceeds Rs. 250 and is therefore unconstitutional. However, the court found this contention unfounded. Article 276(2) limits the amount payable in respect of any one person to Rs. 250 per annum for taxes on professions, trades, callings, and employments. The court referenced the legislative history, noting that similar provisions existed in the Government of India Act, 1935, under Section 142-A, which did not apply to octroi duties. The court concluded that neither Article 276 nor Section 142-A of the Government of India Act, 1935, applies to the impugned tax, which is an octroi duty, not a tax on professions, trades, callings, or employments. Article 301: The appellants argued that the tax imposed violates Article 301, which guarantees the freedom of trade, commerce, and intercourse throughout the territory of India. The court referred to the majority opinion in Atiabari Tea Co. Ltd. v. State of Assam, which stated that taxation on the movement of goods directly affects the freedom of trade under Article 301. However, the respondent relied on Article 305, which exempts existing laws from the provisions of Articles 301 and 303 unless the President directs otherwise. The court noted that the impugned tax was levied under an existing law, the City of Bangalore Municipal Corporation Act, 1949, and was therefore saved by Article 305. The court also rejected the argument that the imposition of the tax was subordinate legislation not saved by Article 305, citing that the Act sufficiently specified the articles on which octroi duty could be levied. Conclusion on Issue 1: The court held that the impugned octroi duty does not contravene the provisions of Articles 276 and 301 of the Constitution. Issue 2: Whether the failure to notify the final resolution of the imposition of the tax in the Government Gazette is fatal to the tax. The appellants argued that the failure to publish the notification in the Government Gazette, as required by Section 98(2) of the City of Bangalore Municipal Corporation Act, was a defect fatal to the legality of the tax. They relied on precedents such as Harla v. State of Rajasthan and State of Kerala v. P. J. Joseph, where the lack of publication rendered the laws invalid. The respondent, however, relied on Section 38(1)(b) of the Act, which cures defects or irregularities not affecting the merits of the case. The court found the language of Section 38(1)(b) unambiguous and clear, stating that it validates any defect in any act done or proceedings taken under the Act, provided it does not affect the merits of the case. The court concluded that the failure to publish the notification in the Government Gazette did not affect the merits of the imposition of the tax, as the resolution was published in newspapers and communicated to those affected. Conclusion on Issue 2: The court held that the mere failure to notify the final resolution of the imposition of the tax in the Government Gazette is not fatal to the legality of the imposition. Final Judgment: The court dismissed the appeals and writ petitions, concluding that the impugned octroi duty does not violate Articles 276 and 301 of the Constitution, and the failure to publish the notification in the Government Gazette does not invalidate the tax. The appeals and petitions were dismissed with costs, with one hearing fee for the appeals and no order as to costs for the petitions.
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