140 and 177 to 191 of 1959
Petitions under Article 32 of the Constitution of India for enforcement of Fundamental Rights
M R M Abdul Karim and K R Choudhury for petitioners
K N Rajagopala Sastri and D Gupta for respondents
513 1961
March 22
The Judgment of the Court was delivered by KAPUR J
These are sixteen petitions under article 32 of the Constitution challenging the legality of the imposition of surcharge imposed on the income of the assessees under the Finance Acts of 1942 1943 1944 and 1945
The assessment relates to four assessment years 1942 43 1943 44 1944 45 and 1945 46
The petitioners are four partners of a firm named Mohammedaly Sarafaly  Co Madras which was carrying on business in hardware stocks shares etc
For the assessment years 1942 43 to 1945 46 this firm was treated as a registered firm under the Indian Income tax Act and therefore the partners were assessed on their respective shares of the profits from the business of the firm
All assessments were completed before 1949 and total income for the purpose of assessment for those four years was about Rs 2900000
In 1955 the petitioners under a Voluntary Disclosure Scheme  with regard to profits which had escaped assessment made a disclosure of their income and proceedings were taken under section 34 of the Income tax Act
In the month of April 1959 there was a reassessment on all the four partners and the total income for the four assessment years thus came to about Rs 35 lakhs which included Rs 29 lakhs already assessed
On that income income tax super tax and surcharge were levied
The surcharge according to the petition was Rs 382791
It is this surcharge which is impugned as being without the authority of law inasmuch as the then Federal Legislature it is submitted was not competent to levy the surcharge
Provision for surcharge was made under section 81 of the Finance Act 1942 Act XII of 1942
This section may now be quoted Section 81 Subject to the provisions of sub sections 2 and 3 a income tax for the year beginning on the 1st day of April 1942 shall be charged at the rates specified in Part I of Schedule II increased in the cases to which subparagraph b of paragraph A 65 514 and paragraph B of that part apply with a sur charge for the purposes of the Central Government at the rate specified therein in respect of each such rate of income tax and b rates of super tax for the year beginning on the 1st day of April 1942 shall for the purpose of section 55 of the Indian Income tax Act 1922 be those specified in Part II of Schedule II increased in the cases to which paragraphs A B and C of that Part apply by a surcharge for the purposes of the Central Government at the rate specified therein in respect of each such rate of super tax
 It was contended that the Federal Legislature had no power under the Government of India Act 193525 and 26 Geo V Ch 42 to impose a surcharge for the purposes of the Central Government
The legislative power of the Federal Legislature was given in section 100 of the Government of India Act 1935 and the power to tax income was contained in item 4 of List I of the Seventh Schedule which was as follows Taxes on income other than agricultural income
 Part VII of the Government of India Act 1935 deals with Finance Property and Suits and the first chapter deals with Finance
The relevant section which has been relied upon by the petitioners ie section 1381 of that Act is in that Part which deals with Distribution of Revenues between the Federation and the Federal Units
That section reads Section 1381 Taxes on income other than agricultural income shall be levied and collected by the Federation   
Provided that a           b the Federal Legislature may at any time increase the said taxes by a surcharge for Federal purposes and the whole proceeds of any such surcharge shall form part of the revenues of the Federation
 It was submitted that according to this section the power of the Federal Legislature to impose a surcharge was only for Federal purposes that by section 81 of the Finance Act 1942 and similar provisions in 515 the other Finance Acts of three following years the surcharge had been levied for the purposes of the Central Government and that the terms the purposes of the Central Government and for Federal purposes were not the same but were two different concepts
Section 311 of the Government of India Act 1935 deals with Interpretation but Federal purposes is Dot defined in that section
In subsection 3 of section 313 which is in Part XIII dealing with Transitional Provisions it is provided Section 3133 References  in the provisions of this Act for the time being in force to the Governor General and the Federal Government shall except as respects matters with respect to which the Governor General is required by the said provisions to act in his discretion be construed as references to the Governor General in council and any reference to the Federation except where the reference is to the establishment of the Federation shall be construed as a reference to British India the Governor General in Council or the Governor general as the circumstances and the context may require
 On the basis of this section it was urged that the term Federal purposes in section 1381b of the Government of India Act 1935 means the purposes of the Federal Government ie of the Governor General in Council or the Governor General as the case may be and that in the context it is a term of lesser amplitude than the term purposes of the Central Government
Central Government in section 38aba of the  was defined as follows Section 3 8ab Central Government  shall a in relation to anything done or to be done after the commencement of of the Government of India Act 1935 mean the Federal Government
Federal Government was defined in the in section 18 a as follows Section 18 a  Federal Government  shall a in relation to anything done or to be done after the commencement of of the Government of India Act 1935 but before the establishment of the Federation mean as respects matters 516 with respect to which the Governor General is by and under the provisions of the said Act for the time being in force required to act in his discretion the Governor General and as respects other matters the Governor General in Council and shall include i in relation to functions entrusted under section 1241 of the said Act to the Government of a Province the Provincial Government acting within the scope of the authority given to it under that subsection and ii in relation to the administration of a Chief Commissioner s Province the Chief Commissioner acting within the scope of the authority given to him under section 943 of the said Act
From these sections it was argued that the term Federal Government in the Government of India Act 1935 only meant the Governor General or the Governor General in Council as the case may be but under the definition in the the term Central Government did not only denote the Governor General or the Governor General in Council as the case may be but also included for certain purposes the Provincial Governments acting within the scope of the authority given to them under a 1241 of the Government of India Act 1935
This argument in our opinion is wholly fallacious
The power of the Federal Legislature to legislate was conferred by section 100 sub sections
1 and 2
The first sub section deals with the power of the Federal Legislature to legislate in regard to items contained in the First List which was exclusively within the power of the Federal Legislature
The Federal Legislature therefore had the power to legislate in regard to any subject contained in List I and item 54 relating to taxes on income was in that List
It has been held that the items have to be given the widest possible amplitude
But it was submitted that the power under item 54 howsoever wide it may be is subject to the limitation contained in section 1381 proviso b
Now Federal purposes is not defined in the Government of India Act 1935 nor is it defined in the General 517 Clauses Act
But there is sufficient indication in section 138 itself that the amounts recovered as surcharge were to form part of the Revenues of the Federation and such Revenues were to be expended for the purposes there indicated
Under section 1244 of the Government of India Act 1935 where powers and duties are conferred by section 124 upon a Province or a Federated State there shall be paia by the Federation to the Province or the Federated State such sum as may be agreed Hence by the definitions given in   
Hence by the given in the no different concept of the words purposes of the Central Government was intended from what was intended by the use of the words Federal purposes in section 1381b of the Government of India Act 1935
These petitions therefore fail and are dismissed with costs
One hearing fee
Petitions dismissed


Summary:
The petitioners as partners of a registered firm were assessed to income tax for the relevant assessment years
Thereafter they made a disclosure of their income under a Voluntary Disclosure Scheme regarding profits which had escaped assessment and on reassessment of the disclosed income income tax super tax and surcharge were levied
The levy of surcharge but not income tax and super tax was challenged as unauthorised
Held that the power to legislate for levy of tax on income was conferred upon the Federal Legislature by section 100 sub sections 1 and 2 of the Government of India Act 1935 and item 54 of List I of the Seventh Schedule and the Federal Legislature was competent under that entry to legislate in regard to the levy of a surcharge on tax section 1381 proviso b did not restrict the amplitude of that legislative power
The term Federal purposes in section 138 is not defined in the Government of India Act nor in the  but there is sufficient indication in the section itself that surcharges were to form part of the Revenues of the Federation and such Revenues were to be expended for the purposes therein mentioned
The concept of the words purposes of the Central Government under the was not different from what was intended by the use of the words Federal purposes in section 138i proviso b of the Government of India Act