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TMI Blog1995 (8) TMI 299X X X X Extracts X X X X X X X X Extracts X X X X ..... hicles, the same can neither be registered nor any new registration mark can be granted as per the prohibition contained in section 4-E of the Act. 3.. In the case of State of Karnataka v. Hansa Corporation AIR 1981 SC 463, it has been held that the Act does not in any way offend articles 14, 19(1)(g) and 304(a) and (b) of the Constitution of India and has been held to be constitutionally valid by the Supreme Court. Since no new ground has been made out for examining the constitutional validity of the provisions of the Act in relation to motor vehicles in particular, I find myself unable to enter into those issues. 4.. The only ground of substance which has been raised on behalf of the petitioner is whether in view of exemption accorded under section 28 of the Act which applies to all persons being not dealers in goods, the petitioners can still be made liable to pay entry tax on vehicles imported by them. Their submissions is that the said exempting provision is of general application irrespective of the nature of goods and no rule of construction can be employed to carve out any exception to the said exempting section so as to place the importers of motor vehicles in a separa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he State under the Motor Vehicles Act, 1988. 8.. The importer has been defined under section 4-A(1)(c) to mean a person who brings a motor vehicle into a local area from any place outside the State for use or sale therein and who owns the vehicle at the time of its entry into a local area. Admittedly, all the petitioners in this batch of writ petitions squarely fall within the definition of importer , and, therefore, if the provision of Chapter II-A is permissible to be read in isolation and segregation from section 28, petitioners will squarely fall within the ambit of charging section 4-B making them liable to pay tax on entry of their motor vehicles in the local areas concerned. But, the question is whether the provisions of Chapter II-A can at all be read in isolation of other provisions of the Act in general and section 28 in particular by applying any permissible rule of interpretation befitting the defined judicial parameters or through any judicial activism for attaining the supposed legislative intention as suggested by Mr. D Sa. 9.. Section 28 of the Act reads as under: Nothing in this Act shall apply to persons who are not dealers in goods . The crucial words us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice if he brings the said goods in the course of any business conducted by him, because the expression business includes any transaction in connection with or incidental or ancillary to trade, commerce, etc. For example, if a person carrying on transport business, though in common parlance may not be a dealer in motor vehicles in the sense of selling and purchasing motor vehicles, imports a vehicle into the State for the purpose of using the same for carrying on his business of transportation of goods or passengers, he can well be said to be a dealer in goods, namely motor vehicles, for the purpose of the present Act. Similarly, if a company or concern dealing in immovable properties or civil contracts, imports any motor vehicle of any nature in any local area in connection with its business or adventure, namely, for use of its officers/personnels or for carrying any material or goods, will also fall within the four corners of the word dealer as used in the Act. The instances may be many but need not be elaborated any further. 12.. The said aspect will bear better clarity if one reads the definition of dealer as set out in clause (1)(k) of section 2 of the Karnataka Sales T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is some defect in the phraseology used by the Legislature the court cannot, as pointed out in Crawford v. Spooner, 6 Moo PC 1, aid the Legislature s defective phrasing of an Act or add and amend or, by construction, make up deficiencies which are left in the Act. Even where there is casus omissus, it is, as said by Lord Russell of Killowen in Hansraj Gupta v. Dehra Dun-Mussoorie Electric Tramway Co. Ltd. AIR 1933 PC 63, for others than the courts to remedy the defect. 15.. Coming to the present case, neither the scheme under the Act nor the phraseology of section 28 suggests any casus omissus. The suggestion of digging out a casus omissus and remedying the same by construction seems to be an ingenuity conceived by the respondents to widen their net of taxation under the executive fiet to cover the cases of entry of motor vehicles even where the same has been caused by non-dealers in goods. In my opinion, such a course is not only impermissible but also unwarranted. It is well-settled that a subject cannot be burdened with tax unless the Legislature has unambiguously expressed itself to that effect. 16.. Section 28 of the Act imperatively declares that nothing in this Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions to such legislation are not wanting in our statute books; and the fact that one such entries is residuary entry does not attract any disability. 20.. Again in the case of Ujagar Prints v. Union of India [1989] 74 STC 401 (SC) at page 426 ; (1989) 3 SCC 488, paragraph 53, it has been held that: In defending the validity of a law questioned on ground of legislative incompetence, the State can always show that the law was supportable under any other entry within the competence of the Legislature. Indeed in supporting a legislation sustenance could be drawn and had from a number of entries. The legislation could be a composite legislation drawing upon several entries. Such a rag-bag legislation is particularly familiar in taxation. 21.. Therefore, no doubt in the present case provisions under section 4-E are simultaneously referable to entry 35 of the Concurrent List and entry 52 of the State List, but the making of such a composite legislation is permissible and lies within the competence of the State Legislature subject to compliance with the requirement of article 254(2) of the Constitution as has been done in the present case. Therefore, this part of the contentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax. But an importer who is not a dealer will be liable to pay only the entry tax and not the sales tax. Therefore, the resultant effect is that in any event in relation to the motor vehicles only 8 per cent tax is required to be paid-either in the form of sales tax or entry tax. This legal position could not be disputed by the petitioners. In that view of the matter, in my opinion, the grievance of discrimination in terms of article 304(a) is unsustainable. 24.. Accordingly it is held that in all these cases if it is found that the petitioners are not dealers in goods as defined under clause (4) of section 2 of the Act, they cannot be held liable for payment of entry tax under the Act in respect of vehicles which have been brought by them in the State after its purchase in other State for their own use, and, as such they cannot be denied the benefit of registering their vehicles or changing of registration mark by applying section 4-E of the Act, if they are otherwise entitled to the same under the provisions of the Motor Vehicles Act. 25.. Whether any of the petitioners is dealer under the Act or not is a question of fact to be determined by the authorities under the Act, ke ..... X X X X Extracts X X X X X X X X Extracts X X X X
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