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TMI Blog1990 (3) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... oods mentioned in the bye-laws, it is not for the court to question it on the ground that some similar commodities or commodities arriving by rail or road were not subjected to the tax. The tax having not been found to be discriminatory or otherwise illegal, we do not find any force in the submission that it imposed any unreasonable restriction on the appellants' rights guaranteed under article 19(1)(g) of the Constitution of India. Appeal dismissed. - Civil Appeal No. 748 of 1975, Special Appeal No. 289 of 1963 - - - Dated:- 20-3-1990 - Judge(s) : P. B. SAWANT., K. N. SAIKIA JJ. Mrs. Rachna Gupta, Advocate (N.P.) and Mrs. Rani Chhabra, Advocate, for the respondent. R.K. Maheswari, Advocate, for the appellant. JUDGMENT The judgment of the court was delivered by SAIKIA J. -This appeal by Special leave is from the judgment and order dated December 3, 1971, of the Allahabad High Court in Special Appeal No. 289 of 1963 dismissing the appeal and consequently the writ petition. The appellant is a (pacca arhatiya) commission agent engaged in the sale and purchase of grains, rice, oil seeds and jaggery in the town of Chirgaon, District Jhansi. On March 4, 193 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng dues shall be charged on any article imported by rail nor on rice, salt, gur and sugar imported from Jhansi and Moth by rail or road. (e) On refusal to pay the weighing dues it shall be recoverable as arrears of tax on circumstances and property." Since the appellant was a dealer in some of these commodities, he was served with a notice dated July 27, 1962, demanding Rs. 1,892.26 as weighing dues for the period from May 1, 1962, to June 30, 1962. The appellant challenged the aforesaid notice by filing a writ petition on August 18, 1962, in the Allahabad High Court being Civil Miscellaneous Writ Petition No. 2400 of 1962. A learned single judge, by his order dated April 29, 1963, dismissed the same taking the view that the demand made by the respondent was purely a measure of taxation. The appellant flied therefrom Special Appeal No. 289 of 1963, which was dismissed by the impugned judgment and order. Before the High Court, the appellant contended, Inter alia, that the bye-laws were invalid as the Town Area Committee, shortly "the TAC", did not frame them ; that the TAC had no power to impose such tax ; that the U. P. Town Areas (Amendment) Act, 1952, did not empower the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he writ petition. Learned counsel for the respondent refutes all the submissions of the appellant and supports the impugned judgment. The first question that needs examination is the validity of the bye-laws promulgated by the District Magistrate on November 18, 1934, after the notification published by, the Government of U. P. issued under section 38(1) of the Town Areas Act. That section, as it stood at the relevant time, empowered the provincial Government to extend, by notification in the Gazette, to all town areas or to any town area or to any part of a town area any enactment for the time being in force in any, municipality in the United Provinces subject to such restrictions and modifications, if any, as it thought fit. By the instant Notification dated March 4, 1933, the Provincial Government extended the provisions of section 298(2)F(d) of the United Provinces Municipalities Act, 1916, hereinafter referred to as "the Municipalities Act", to the town area of Chirgaon in the Jhansi District in the modified form set forth in the notification itself. The word "Panchayat" was substituted by the word "Committee" by section 4 of the United Provinces Town Areas (Amendment) Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch. But clause (xiv) of that section provided: "Any other tax which the State Legislature has power to impose in the State under the Constitution." At the relevant time, after the amendment of section 14(1)(g) of the Town Areas Act, the TAC was thus empowered to levy any other tax, being one of the taxes mentioned in sub-section (1) of section 128 of the U. P. Municipalities Act, 1916. The High Court, on the basis of the above provision, concluded that the TAC became empowered to levy all those taxes which the State Government could levy under sub-section (1) of section 128 of the Municipalities Act; and the TAC could impose any tax which the State Legislature could impose under the Constitution. Further, it was concluded that entry 52 of List 11 empowered the State Government to impose tax on the entry of goods into a local area for consumption, use or sale therein and entry 54 of list II empowered the State Government to impose tax on the sale or purchase of goods and hence the TAC could impose tax on the entry of goods as well as on the sale or purchase of goods in view of entries 52 and 54 of List II. Referring to bye-law No. 1, the High Court concluded that this imposit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no relation to the value of the services performed and where the amount collected eventually finds its way into the treasury of the branch of the Government whose officer or officers collect the charge is not a fee but a tax." Under the Indian Constitution, the State Government's power to levy tax is not identical with that of its power to levy a fee. While the power to levy taxes is conferred on the State Legislatures by the various entries in List 11, in it there is entry 66 relating to fees, empowering the State Government to levy fees "in respect of any of the matters in this List, but not including fees taken in any court." The result is that each State Legislature has the power to levy fees which is co-extensive with its powers to legislate with respect to substantive matters and it may levy a fee with reference to the services that would be rendered by the State under such law. The State may also delegate such a power to a local authority. When levy or an imposition is questioned, the court has to inquire into its real nature inasmuch as, though an imposition is labelled as a fee, in reality, it may not be a fee but a tax and vice versa. The question to be determined is w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of any disputes which were to be settled. The weights of persons were also checked and verified by the TAC and its seal was affixed to those weights in order to prevent cheating. In paragraph 12, it was stated that TAC employed about 40 sweepers out of which about half were especially deputed for keeping the places where the sale transactions took place clean. One bakshi, one jamadar and one peon were also deputed to supervise the selling in order to see that the bye-laws in respect of weighment were carried out and that there was no cheating. Thus, the TAC justified the charging of weighing dues, but conceded that the same was a tax as there was no quid pro quo. The respondent having thus conceded that there was no quid pro quo, we have to hold, as also was rightly held by the High Court, that the weighing dues constituted a tax and not a fee. We do not find any merit in the appellant's submission that there was double taxation in this case. The expression "double taxation" is often used in different senses, namely, in its strict legal sense of direct double taxation and in its popular sense of indirect double taxation. Double taxation in the strict legal sense means ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, there is no inherent invalidity in the fiscal adventure save where other prohibitions exist." We do not find materials in this case to allow the contention to be re-born. The submission is, accordingly, rejected. The contention that the tax is discriminatory in view of the exemptions granted to some of the products and to those that enter the TAC by rail or motor transport is equally untenable. It is for the Legislature or the taxing authority to determine the question of need, the policy and to select the goods or services for taxation. The courts cannot review these decisions. In paragraph 16 of the counter-affidavit, the TAC tried to explain the reason for not taxing salt, sugar and rice stating that they were not local produce but were imported from distant places and that the tax was levied only on the local produce which came from neighbouring places. The courts cannot review the wisdom or advisability or expediency of a tax as the court has no concern with the policy of legislation, so long as they are not inconsistent with the provisions of the Constitution. It is only where there is abuse of its powers and transgression of the legislative function in levying a tax, it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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