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TMI Blog2003 (5) TMI 499X X X X Extracts X X X X X X X X Extracts X X X X ..... d while assailing the constitutional validity of the Amendment Act. The learned single Judge without finding any merits in the writ petitions, dismissed the writ petitions by a common order. Hence, these writ appeals by the aggrieved writ petitioners. 3.. We have heard Sri S. Narayana, learned advocate for the appellants and Sri B. Anand, learned Government advocate for Taxes. 4.. Sri S. Narayana, while assailing the constitutional validity of the impugned amendment Act, would contend that marriage halls have become places of necessity as people cannot afford to celebrate marriages in their houses or elsewhere, because of want of accommodation and other factors like electricity, water, car parking spaces and other facilities connected with the performance of marriages. Sri Narayana contends since marriage is a religious function, it falls outside the ordinary understanding of any luxury. Luxury provided in a hotel as defined in section 2(5) of the Act extends to air-conditioning, telephone, television, music, beauty parlour, swimming pool, etc., and such an element of luxury is not present in the facilities provided in a marriage hall. Except the air-conditioning, the rest of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lyana mantap, shadi mahal, community hall, a building or part of a building where accommodation is provided for marriage or reception or matters related therewith, whether or not such marriage or reception or matter related therewith are regularly conducted." 9.. In India, the doctrine of "power to tax" is embodied in article 265 of the Constitution. The Legislature is omnipotent in the exercise of the taxing prerogative, however, subject to the provisions of the Constitution. The right to impose taxes and to determine the circumstances under which they will be done is always a privilege of the concerned Legislature. Article 265 mandates that no tax shall be levied or collected except by authority of law. The power to tax is an incident of sovereignty. Apart from the limitation by the division of the taxing power between the Union and the State Legislatures by the relevant entries in the Legislative Lists, the taxing power of either Legislature is subjected to certain limitations imposed by the Constitution. For example, the taxing power of a Legislature must not contravene article 13 as held in Kunnathat Thathunni Moopil Nair v. State of Kerala AIR 1961 SC 552; it must not deny ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le by any person. All these provisions are subsidiary to the main power to levy a tax. Nevertheless, all this is subject to the constitutional limitations as pointed out supra. Therefore, it becomes necessary that even tax statutes have to satisfy the test of reasonableness prescribed by article 19(6) and the fundamental right of equality before law guaranteed by article 14 of the Constitution. 12.. In tax matters, the State is allowed to pick and choose districts, objects, persons, methods and even rates for taxation if it does so reasonably, as held by the Supreme Court in Balaji v. Income-tax Officer [1961] 43 ITR 393, B. Basavalingappa v. State of Karnataka [1985] 59 STC 1 (Kar). The entries in the Legislative Lists of the Constitution were not powers but were only fields of legislation and, therefore, the widest importance and significance should be given to the language used by the Legislature in various entries. In interpreting the fiscal statutes, we must also remember the provisions in a fiscal statute are not to be so construed as to furnish a chance of escape and means of evasion as held by the Full Bench of this Court in C. Arunachalam v. Commissioner of Income-tax [1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 2(e) of the Gujarat Tax on Luxuries (Hotels and Lodging Houses) Act, 1977 is similar to the definition defined under section 2(5) of the Act. In the case of Express Hotels Private Ltd. v. State of Gujarat [1989] 74 STC 157, various contentions were raised to assail the constitutional validity of the provisions of the statute. The Supreme Court while examining the scope of entry 62 held that the concept of tax on "luxury" in entry 62, List II, of the Seventh Schedule to the Constitution of India, cannot be limited merely to tax things, tangible and corporeal in their aspect as "luxuries". The Supreme Court observed that, while it is true that frugal or simple food and medicine may be classified as necessities, articles such as jewellery, perfume, intoxicating liquor, tobacco, etc., could be called articles of luxury. But the legislative entry cannot be exhausted by such cases, illustrative of the concept. The Supreme Court held that entry 62 encompasses all the manifestations or emanations of the notion of "luxuries". In other words, the element of extravagance or indulgence that differentiates "luxury" from "necessity" cannot be confined to goods and articles. There can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n excluded from the total charges, electricity, water and fuel cannot be subjected to tax is, again, not tenable. Suffice it to state that the levy of tax under section 3 is on the "charges on luxury provided in a marriage hall". The section contemplates the charge on daily basis. The definition of "charges for marriage hall" includes certain charges so that the charges which are collected are not bifurcated in such a manner so as to escape the liability which has been created by the charging section. The question raised by Sri Narayana as to whether the charge for water and electricity can be charged for food and drink is a point which could be adjudicated in accordance with the Explanation to section 2(1A) by the Government. Therefore, the above ground urged by Sri Narayana could hardly be a valid ground to assail constitutional validity of a statute. 18.. We also do not find any merit in the last contention of Sri Narayana that the imposition of charges for marriage hall by the impugned Amendment Act is totally unreasonable and arbitrary. It is well-settled law that a law made by Parliament or Legislature can be struck down by courts only on two grounds and those two grounds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the State Legislature as unconstitutional when the Parliament or the State Legislature has assumed to enact a law which is void, either from want of constitutional power to enact it, or because the constitutional forms or conditions have not been observed, or where the law infringes the fundamental rights enshrined and guaranteed in Part III of the Constitution or any other substantive constitutional provisions. It is needless to state that Legislature and judiciary are co-ordinate organs of the State, or equal dignity and status under the constitutional scheme. It is permissible for the constitutional Courts to declare legislative enactments unconstitutional and void in some cases, but not because the judicial power is superior in degree or dignity to the legislative. The court while declaring a law as invalid or unconstitutional is only enforcing the legislative will and the limits imposed by the Constitution on the law-making bodies. No court can declare a statute unconstitutional and void, solely on the ground of unjust and harsh provisions, or because it is supposed to violate some natural, social, political or economic rights of citizen, unless it can be shown that such i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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