9911796707
TMI Blog1959 (2) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assam Sales Tax Rules, hereinafter called the rules, by his order dated 3rd June, 1957. A petition was filed by the assessee before the Board of Sales Tax, Assam, for reference, which was rejected. An application was thereafter made to this Court under section 32(5) of the Act, and the Board was directed to state the case and refer questions of law arising out of the order of the Assistant Commissioner of Taxes, to this Court. The following questions of law have been referred to this Court: "(i) If in the circumstances of the case, the Assistant Commissioner of Taxes was right in rejecting the appeal on the ground that it was not in compliance with rule 30 of the rules framed under the Act? (ii) If, in view of the amendment of the Court-fees Act, the provisions of rule 74 are ultra vires? (iii) If the Assistant Commissioner of Taxes was competent to entertain the appeal?" The Board has suggested that the answers to questions (i) and (iii) should be in the affirmative and that to question (ii) should be in the negative. Rule 29 of the Assam Sales Tax Rules provides that memorandum of appeal shall be in Form No. 13, and rule 30 provides that it shall be accompanied by a certi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule has been inserted: "(c) to a High Court in miscellaneous revenue matters except (d) below or to an appellate authority prescribed under the Motor Vehicles Act, 1939, or to an appellate authority prescribed under the Assam Sales Tax Act, 1947..........Ten rupees." As the Court-fees Act now provides for fee on memoranda of appeals, this Act should prevail over the provisions of rule 74 in so far as the rule prescribed fees on memoranda of appeals. The Court-fees Act, being a subsequent enactment on the same subject, should prevail over the earlier rules; and to that extent the rules stand impliedly repealed. In this connection, it is further argued that the legislative enactment should prevail over the rules framed by the administrative authorities. There are two earlier decisions of this Court in which it has been held that rule 74 is intra vires and is not hit by the rule of excessive delegation. In the case of Banwarilal v. State of Assam A.I.R. 1955 Assam 195., it was held that the Assam Sales Tax Act, under section 52, does not leave any power to determine liability to levy tax to the Provincial Government. It has merely authorised the fixation of fees, if any, for petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as ancillary to the main purposes of the Act and with a view to carry out the purposes of the Act. This aspect was considered by the Bench in the case of Banwarilal v. State of AssamA.I.R. 1955 Assam 195. referred to above. The question of excessive delegation was examined by the Federal Court and the Supreme Court in a number of cases. In the case of Jatindra Nath Gupta v. Province of BiharA.I.R. 1949 F.C. 175., it was for the first time authoritatively laid down that in the Indian Constitution, there was a prohibition against delegation of legislative powers by the Legislature. In the case of In re Article 153 of the Constitution of India and Delhi Laws Act (1912), etc.(3), which went to the Supreme Court on a reference under Article 143 of the Constitution, the law has been exhaustively dealt with. In the case of Hari Shankar Bagla v. State of Madhya PradeshA.I.R. 1954 S.C. 465., it was observed that it was settled by the majority judgment in the Delhi Laws case A.I.R. 1951 S.C. 332. that the essential powers of legislation cannot be delegated. In other words, the Legislature cannot delegate its function of laying down legislative policy in respect of a measure and its formulat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a of appeals. Rule 74 is thus not ultra vires on this ground. It is then argued that the distinction between a tax and a fee has been laid down by the Supreme Court in a number of cases, and applying those tests to the present case, what has been levied by rule 74 is a tax, and not a fee. Reliance has been placed on the following passage in the case of Ratilal Panachand v. State of BombayA.I.R. 1954 S.C. 388. "Fees, on the other hand, are payments primarily in the public interest, but for some special service rendered or some special work done for the benefit of those from whom the payments are demanded. Thus in fees, there is always an element of quid pro quo which is absent in a tax. It may not be possible to prove in every case that the fees that are collected by the Government approximate to the expenses that are incurred by it in rendering any particular kind of services or in performing any particular work for the benefit of certain individuals. But in order that the collections made by the Government can rank as fees, there must be correlation between the levy imposed and the expenses incurred by the State for the purpose of rendering such services. This can be proved by sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "But the material fact which negatives the theory of fees in the present case is that the money raised by levy of the contribution is not ear-marked or specified for defraying the expenses that the Government has to incur in performing the services. All the collections go to the consolidated fund of the State and all the expenses have to be met not out of these collections but out of the general revenues by a proper method of appropriation as is done in case of other Government expenses. That in itself might not be conclusive, but in this case there is total absence of any correlation between the expenses incurred by the Government and the amount raised by contribution............ " An examination of these two cases will reveal that for the purpose of legislation a clear distinction has been made in the Constitution between a fee and a tax although there is no generic difference between the two. In those cases the constitutionality of certain provisions of an Act was involved and in these circumstances it was observed that it should appear on the face of legislative provision that the amount was set apart for the services rendered. In cases where the competency of the legislature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the services rendered, though the rules of natural justice would require that the assessee should be granted a copy of the assessment order free of charge. No fixed criterion can be laid down to decide when a levy can be regarded to be a fee and when can it be said to be a tax. The circumstances of each case will have to be examined. The next case relied upon is the case of Nagpur Kshatriya Khatik Samaj, Nagpur v. Corporation of the City of NagpurA.I.R. 1956 Nag. 152. That case is distinguishable on the facts. Various special circumstances have been pointed out in the judgment on consideration of which the learned Judges of the Nagpur High Court came to the conclusion that the levy in that case was in the nature of a tax and not a fee. The last contention on this point is that the amendment made in the Court-fees Act will prevail over rule 74. The Board on this point has observed that the fees levied under the Assam Court-fees Act fell under Item 3 of List II of the Seventh Schedule of the Constitution and that the fees levied under rule 74 falls under Item 66 of List II, and therefore, both the fees could be simultaneously levied. Mr. Sharma who appears for the petitioners ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... together before they can, from the language of the later, imply the repeal of an express prior enactment." It has been further stated in Craies' Statute Law at page 339 as follows: "Where a new Act is couched in general affirmative language, and the previous law can well stand with it, and if the language used in the later Act is all in the affirmative, there is nothing to say that the previous law shall be repealed, and therefore the old and the new laws may stand together." In the case of Ram Chandra Misra v. President, District Board, Ganjam(1), it was held that section 166 of the Madras Local Boards Act was concerned with safeguarding the public roads whereas the transport authorities in section 42 of the Motor Vehicles Act are concerned with the regulation of traffic in the interests of public safety and convenience. Thus when the objects of section 42 of the Central Act and section 166 of the Madras Act are entirely different, though there is overlapping of the functions of the two bodies to some extent, the question of the provision of a later statute repealing by implication the provision in an earlier statute does not arise. The contention was that section 166 of the Mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner. According to him the Assistant Commissioner could render assistance to the Commissioner only in matters which the Commissioner is expressly authorised to deal with under the Act except the power of reference under section 31 and 32. Any power which the Commissioner can delegate can only be exercised by the authorities under delegation, but the Assistant Commissioner by virtue of his appointment as such cannot exercise those powers. The assistance for which he has been appointed relates to those powers only which have been expressly conferred on the Commissioner under the Act. Section 30, in our opinion, clearly negatives the contention of the petitioner on this behalf. It provides that any dealer objecting to an order of assessment or penalty passed under this Act within thirty days from the date of the service of such order, may appeal to the prescribed authority against such assessment or penalty. An appeal, therefore, under section 30 of the Act lies to the prescribed authority. Rule 26 of the Assam Sales Tax Rules prescribes that an appeal against an order of assessment of tax or penalty passed by the Superintendent of Sales Tax shall lie to the Assistant Commissioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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