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TMI Blog1984 (12) TMI 278X X X X Extracts X X X X X X X X Extracts X X X X ..... of this writ petition. The levy of surcharge has been questioned, inter alia, on the grounds (1) that section 4-A of the Jammu and Kashmir General Sales Tax Act, 1962 as amended is violative of article 14 of the Constitution of India, (2) that section 4-A contravenes articles 19(1)(f) and 19(1)(g) of the Constitution of India, (3) that the levy of surcharge is a tax on the income and, therefore, suffers from the vice of double taxation, (4) that section 4-A is hit by article 276(2) of the Constitution of India, for, the section does not limit the levy of surcharge to a maximum of Rs. 250 as provided under article 276(2) of the Constitution of India, (5) that the levy of surcharge under section 4-A is unconstitutional, as it contravenes ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax when the turnover of the dealer exceeds the specified limit and is, therefore, a tax on the aggregate of sales effected by the dealer during the year. In view of the authority of the Supreme Court, the first four grounds of attack as noticed above, must be repelled and in fairness to the learned counsel for the petitioners we must record that they conceded that these grounds of attack, in view of the Supreme Court judgment, noticed above, do not survive. In so far as the fifth ground of attack is concerned, no factual matrix has been laid in the petition. All that is stated is that the levy of surcharge under section 4-A is violative of article 286(3) of the Constitution of India read with section 15 of the Central Sales Tax Act becaus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in favour of constitutionality and keeping in view the vague assertions and after considering the argument raised at the Bar, we are unable to hold that section 4-A of the Jammu and Kashmir Sales Tax Act, 1962 as amended is violative of section 15 of the Central Sales Tax Act or erodes article 286 of the Constitution of India. We accordingly hold that the said section is not violative of article 286 of the Constitution of India. Coming now to the last ground of attack, with a view to appreciate the submission raised at the Bar it would be advantageous to first notice the provisions of section 4-A of the Jammu and Kashmir Sales Tax Act, 1962 as amended. Section 4-A was inserted in the Act in 1974 by Act XIV of 1974 with effect from 1st Oc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the prescribed rate would be levied on a dealer if his turnover "for every year" exceeded Rs. 2.5 lacs. The Legislature, in using that expression in its supreme wisdom considered that to make a dealer liable to pay surcharge, his turnover for every year must have exceeded 2.5 lacs from the date the aforesaid section was incorporated in the statute book. Subsequently, however, in 1978, the Legislature substituted the words "for every year" by the expression" for any year" implying thereby that a dealer was liable to pay surcharge if in "any year " his turnover exceeded 2.5 lacs irrespective of the fact whether the turnover continuously from 1978 onwards exceeded 2.5 lacs. The change became effective only from the date 9th May, 1978 and ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f assessment, particularly when the petitioner has in the petition categorically stated that its turnover for every year has not been above 2.5 lacs. The assessing authority has not determined this factum, and therefore, the levy of surcharge without such a determination is improper and that levy has to be quashed and the case remanded to the assessing authority for fresh determination of the surcharge. We accordingly allow the writ petition in part and quash the levy of surcharge amounting to Rs. 1,730.22 and remand the case to the assessing authority to pass a fresh order with regard to the surcharge in the light of the observations made hereinabove after hearing the parties. Since the writ petition succeeds only in part, the parties sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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