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TMI Blog2012 (5) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... capacity of brick kiln rather than actual sales. They have, therefore, challenged the notification dated 30.06.1993 (P-1) envisaging realisation of lump sum amount based on actual capacity. They have claimed that their return of sales have been filed regularly and they are paying tax according to assessment framed on that basis. 2. When the matter came up for consideration on 24.11.1994, a Division Bench of this Court while admitting the petition stayed the recovery of lump sum tax subject to condition that payment of tax otherwise under the provisions of the Punjab General Sales Tax Act, 1948 shall be paid. Accordingly, the petitioners have claimed that they have paid the tax on the actual sale and purchase not on the basis of the impugne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el has maintained that a perusal of sub Section (4) of Section 5 of the Act would show that is authorities the State Government to issue notification in the official gazette and direct that a dealer may be required in respect of any goods or class of goods to pay lump sum tax subject to such condition as Government may specify in the notification. According to learned counsel, the payment of lump sum tax would be divested of element of sale or purchase of goods, which is the basic requirement of Entry 54, List-II-State List of the 7th Schedule. Therefore, it has been argued that imposition of lump sum tax without the element of sale is wholly without the competence of the State Legislature and could not have been imposed. Learned counsel ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le. Thus, Entry 54 confers competence on the State Legislature to frame laws concerning tax on sale or purchase of goods other than newspaper. The question before us is whether sub Section (4) of Section 5 of the Act could be brought within the sweep of Entry 54. It would, thus, be necessary to examine sub Section (4) of Section 5 of the Act, which reads as under: "(4) Notwithstanding anything contained in any provision of this Act, the Government, if satisfied that it is necessary or expedient so to do in the public interest, may, by notification in the Official Gazette, direct that in respect of any goods or class of goods a dealer shall pay such lump sum tax and subject to such conditions, as the Government may specify in the notificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the inner and outer wall of the vessel of a brick kiln along its width." 10. A perusal of the aforesaid extracts from the notification would show that lump sum tax is sought to be collected from the brick kiln owners whether there was sale of brick kiln or not. It is trite to notice that the tax can be imposed as per entry 54, List-IIState List of Seventh Schedule, on the sale or purchase of goods. In the absence of an element of sale or purchase, it is not possible to accept that the State Legislature would be competent to impose tax on the capacity to produce brick kilns by brick kiln owners. The incidence of tax is the sale not the production. Therefore, the provisions of sub Section 4 of Section 5 are beyond the competence of the Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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