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TMI Blog1962 (10) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... ared tax-free before and which had been declared by Act 52 of 1952 to be essential for the life of the community and that the said notification had never received the assent of the President of India. is the Financial Commissioner justified in holding that the notification of 5th August, 1954, did not constitute law made by the Legislature of the State." In the other set of four petitions, Sansari Mal Puran Chand v. The StateS.T.R. No. 13 of 1961., Hira Nand Daulat Ram v. The State of PunjabS.T.R. No. 14 of 1961., Ganga Ram Suraj Parkash v. The Punjab StateS.T.R. No. 15 of 1961. and Hira Nand Daulat Ram v. The State of PunjabS.T.R. No. 16 of 1961., the Financial Commissioner, Punjab, by his order of the 31st of August, 1961, has referred the following question for the opinion of this Court: "The question which arises in all these cases is whether a notification issued by the Punjab Government dated the 5th of August, 1954, whereby exemption from sales tax granted by the Government in respect of certain edible oils was abolished in the case of such edible oils produced in ghanis run by mechanical process was intra vires." Though the form of question is somewhat different in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on 9th of August, 1952. Under section 3 of this Act, "no law made after the commencement of this Act by the Legislature of a State imposing, or authorising the imposition of, a tax on the sale or purchase of any goods declared by this Act to be essential for the life of the community shall have effect unless it has been reserved for the consideration of the President and has received his assent." Under section 2, the goods specified in the Schedule to the Act have been declared to be essential for the life of the community. Item No. 5 of the Schedule consists of "edible oils and oilseeds from which edible oils are extracted." It is contended on behalf of the petitioners that after the 9th of August, 1952, no tax could be imposed on edible oils by any law made by the Legislature of a State without it having received the President's assent. It is not disputed that the impugned notification of 5th of August, 1954, was never submitted to the President for assent and in such a situation no tax could be imposed on edible oils. Having failed to obtain redress from the Financial Commissioner the petitioners approached this Court under section 22(2) of the Punjab General Sales Tax Act and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and even before the ruling of the Supreme Court given in the case of the Delhi Laws Act[1951] S.C.R. 747. He has invited our attention to Jatindra Nath Gupta v. Province of Bihar and Others[1949] 2 F.C.R. 595., in which their Lordships of the Federal Court (Sir Harilal Kania, C. J., Sir Fazl Ali, Patanjali Sastri, Mehr Chand Mahajan and Mukherjea, JJ.) had expressed unequivocally that even under the provisions of the Government of India Act there could be no delegation of legislative power to the executive. Any legislation which vested unfettered legislative powers in the executive would be ipso facto void and unconstitutional. It can admit of no doubt whatever that section 5 of the Act has given an unlimited power to the executive to levy sales tax at the rate it thinks best. The counsel contends that the entire Act became invalid and its provisions could not be invoked for levying sales tax till the defect was remedied by the amendment which was introduced by Punjab Act No. 19 of 1952. On behalf of the State, it is argued that section 5 alone was invalid till 1952, but notifications could still be issued under section 6 which as an existing law was still capable of enforcement. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was invalid. (2) If the valid and invalid provisions are so inextricably mixed up that they cannot be separated from one another, then the invalidity of a portion must result in the invalidity of the Act in its entirety. On the other hand, if they are so distinct and separate that after striking out what is invalid, what remains is in itself a complete code independent of the rest, then it will be upheld notwithstanding that the rest has become unenforceable. (3) Even when the provisions which are valid are distinct and separate from those which are invalid, if they all form part of a single scheme which is intended to be operative as a whole, then also the invalidity of a part will result in the failure of the whole." The contents of the Act may be analysed very briefly to see whether its other provisions are severable from those of section 5. Section 2 embodies the various definitions. In section 3 the taxing authorities are specified. Section 4 deals with the incidence of taxation. Section 5 as said before, is the charging section and defines the taxable turnover. Section 6 provides for a Schedule of tax-free goods which the State Government has the power from time to time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition of a tax on the sale or purchase of any such goods as have been declared by Parliament by law to be essential for the life of the community; and (3) that the impugned law must have been passed subsequent to the Constitution in the sense that the office of the President must have come into existence." The validity of the impugned law can be successfully challenged only if these three conditions are present. In that case a notification had been issued under the Madhya Bharat Sales Tax Act, 1950, imposing tax in the territory of Madhya Bharat on the sale of goods manufactured from iron and steel with effect from 1st of May, 1950. It was held that as the enactment of Parliament had followed the impugned legislation it would not affect retrospectively the validity of the said enactment. In the present instance, Punjab Act No. 19 of 1952 had been passed after the interdict had been placed by Parliament. It matters not that the impugned notification purports to have been issued under section 6 of the Act which was passed in 1948. In truth and substance the Act did not become valid till the amendment of 1952 which gave life and limbs to it. We are not impressed by the argument th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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