Case: A. Hajee Abdul Shakoor And Company Vs. State Of Madras

If the statute treats both these kinds of hides and skins as different commodities the provision of sub-rule (1) of R. 16 providing for the levy of tax on raw hides and skins at a certain point even in the absence of any provision for the taxation of dressed hides and skins cannot be said to be discriminatory and invalid. The articles to be taxed were not the same and the legislature could provide differently about their taxation.32. We, therefore, hold that sub-rule (1) of R. 16 did not become invalid on this Courts declaring sub-rule (2) of that rule invalid in Mehtabs case, AIR 1963 SC 928.33. The only question that now remains for consideration is whether the State legislature was competent to enact the provision of sub-s. (1) of S. 2 of the Act. Hides and Skins had been declared under Act LII of 1952 to be essential for the life of the community. Article 286(3) of the Constitution as it stood before its amendment by the Constitution VIth Amendment Act of 1956, on September 11, 1956, read :"No law made by the Legislature of a State imposing or authorising the imposition of, a tax on the sale or purchase of any such goods as have been declared by Parliament by law to be essential for the life of the community shall have effect unless it has been reserved for the consideration of the President and has received his assent."This provision, however, did not apply to the 1939 Act which had been enacted much earlier than the commencement of the Constitution. By August 28, 1963, when the Act was enacted by the Madras Legislature, Art. 286(3) had been amended and Act LII of 1952 had also been repealed. Consequently there was no Constitutional requirement for the Act being reserved for the assent of the President before it could be enforced. It is contended for the petitioner that the Act really enacted for a period, when if passed, it had to receive the Presidents assent for its enforcement and that therefore the State Legislature could not even in 1963 enact this provision affecting the taxation law in respect of the sale or purchase of goods which were goods declared essential for the life of the community. We do not see why such a fetter be placed on the legislative power of the State legislature. The State legislature is free to enact laws which would have retrospective operation. Its competence to make a law for a certain past period, depends on its present legislative power and not on what it possessed at the period of time when its enactment is to have operation. We therefore do not agree with this contention.34. The matter can be looked at in a different way. The 1939 Act required no assent of the President. The State Legislature was doing in 1963 what the legislature enacting the 1939 Act was supposed to have enacted and therefore its enactment was not governed by the Constitutional requirement for an Act to be enacted during the period Act LII of 1952 was in force.35. Lastly, it has been urged for the petitioner that hides and skins have been declared to be of special importance in inter-State trade or commerce by S. 14 of the Central Sales Tax Act of 1956. The tax imposed by sub-sec. (1) of S. 2 of the Act is a tax on the sale of hides and skins in the course of inter-State trade or commerce and therefore fell within entry No. 92A of List I of Seventh Schedule and that therefore the State legislature was not competent to impose it. It could impose by virtue of entry No. 54 in List II of Seventh Schedule tax on the sale or purchase of goods subject to the provisions of entry No. 92A of List 1. There is no force in this contention. The tax is imposed on the sale which took place within the State. The State legislature is competent to impose such a tax. The mere fact that the article sold in the State had been brought from outside the state does not make the sale of that article a sale in the Course of inter-State trade or commerce. It is only when A, in State X, purchased through a commission agent in a State Y and receives the articles purchased through the Commercial agency that the sale comes within the expression in the course of inter-State trade : See 1954 SCR 53 at p 70 : (AIR 1953 SC 333 at p. 339).36. It has been argued for the State that the Act is not affected by the provisions of Art. 301 to 304 of the Constitution as they affect the legislative power with respect to Acts to operate in the future and not the power to enact Acts which would operate in the past. We do not consider the contention sound. The Act makes provision for a period subsequent to the commencement of the Constitution and therefore is to be subject to the provisions of the Constitution.37. We therefore hold that sub-sec. (1) of S. 2 of the Act discriminates against imported hides and skins which were sold up to the 1st of August 1957 upto which date the tax on sale of raw hides and skins was at the rate of 3 pies per rupee or 19/16th per cent. This however does not mean that the sub-section is valid with respect to the sales which took place subsequent to August 1, 1957. The sub-section being void in its provisions with respect to a certain initial period, we cannot change the provision with respect to the period as enacted to the period for which it could be valid as that would be re-writing the enactment. We have therefore to hold sub-sec. (1) of S. 2 void, and accordingly hold so.38. In view of the provisions of sub-section (1) of S. 2 being invalid the other provisions of that section become unenforceable.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 1

Reasoning from the judgment:
1[ds]10. The effect of sub-s. (1) of S. 2 of the Act is the same as was the effect of sub-rule(2) of R. 16 of the Turnover and Assessment Rules 1939, and which was held to be invalid by this Court in Mehtabs case, AIR 1963 SC 928  . The impugned sub-section provides for the assessment of tax on the sale of dressed hides and skins which were not subject to tax under the 1939 Act as raw hides and skins and thus exempts from taxation, in accordance with the provisions of sub-s. (1) of S. 2 of the Act the sale of tanned hides and skins with respect to which tax had been paid on their sale in the raw condition. Such tanned hides and skins had been exempted from taxation under sub-cl. (ii) of R. 2 of the Turnover and Assessment Rules. The same is the position in the present case. The present rule therefore is discriminatory and invalid for the same reasons which led this Court to hold sub-rule(2) of R. 16 invalid in Mehtabs case, AIR SC 928. There is no escape from this conclusion.11. In the earlier case, discrimination was brought about on account of sale price of tanned hides and skins to be higher than the sale price of untanned hides and skins, though the rate of tax was the same, while in the present case, the discrimination does not arise on account of difference of the price on which the tax is levied as the tax on the tanned hides and skins is levied on the amount for which those hides and skins were last purchased in the untanned condition, but on account of the fact that the rate of tax on the sale of tanned hides and skins is higher than that on the sale of untanned hides and skins. The rate of tax on the sale of tanned hides and skins is 2% on the purchase price of those hides and skins in the untanned condition while the rate of tax on the sale of raw hides and skins in the State during 1955 to 1957 is 3 pies per rupee. The difference in tax works out to 7/1600th of a rupee, i.e., a little less than 1/2 naya paise per rupee. Such a discrimination would affect the taxation upto the 1st of August 1957 when the rate of tax on the sale of raw hides and skins was raised to 2% of the sale price.12. The second contention has no force. There is nothing in sub-sec. (1) of S. 2 of the Act to suggest that the seller of the tanned hides and skins in the State, should himself be the purchaser of those hides and skins in the raw condition from outside the State. An importer can import tanned hides and skins as well as untanned hides and skins from outside the State. If he imports tanned hides and skins, he need not necessarily be the last purchaser of this hides and skins in the untanned condition. In that case, it may be difficult to assess the tax on the basis laid down in sub-sec. (1) of S. 2, as the importer may not be able to inform about the price at which those hides and skins were last purchased. Such a price may then have to be determined by estimate. In case the importer himself purchases the untanned hides and skins and then imports them either in the same condition or in the tanned condition, there would be no such difficulty. The difficulty existing in the former case does not necessarily mean that the importer of tanned hides and skins when he himself is not the last purchaser, cannot be taxed under sub-s. (1) of S. 2 of the Act.It is therefore not correct to say that the process of tanning brings about no change in the raw hides and skins and that therefore both types of hides and skins form one commodity.The Second Schedule refers to raw hides and skins separately from dressed hides and skins against serial No. 7. The rate of tax is different and so is the point at which the tax is to be levied. This will indicate that in 1959 the legislature in Madras considered raw hides and skins a different commodity from dressed hides and skins. There is no good reason why the legislature be not attributed the same intention when it enacted the 1939 Act especially when there are other reasons also to point to the same conclusion.28. We therefore hold that raw hides and skins and dressed hides and skins constitute different commodities of merchandise and they could therefore be treated as different goods for the purposes of thethey treat them as one class of goods, the contention for the petitioner loses force as taxing of hides and skins at the time of their sale on a raw condition meets the requirements of law as hides and skins could be taxed only at a single point. If the dressed or tanned hides and skins are not taxed at the time of their sale that does not offend against the statutory provisions. No question of discrimination arises as a sale of raw hides and skins of whatever origin, i. e., whether produced in the State or imported into the State would be equally liable to the levy of tax.31. If the statute treats both these kinds of hides and skins as different commodities the provision of sub-rule (1) of R. 16 providing for the levy of tax on raw hides and skins at a certain point even in the absence of any provision for the taxation of dressed hides and skins cannot be said to be discriminatory and invalid. The articles to be taxed were not the same and the legislature could provide differently about their taxation.32. We, therefore, hold that sub-rule (1) of R. 16 did not become invalid on this Courts declaring sub-rule (2) of that rule invalid in Mehtabs case, AIR 1963 SCprovision, however, did not apply to the 1939 Act which had been enacted much earlier than the commencement of the Constitution. By August 28, 1963, when the Act was enacted by the Madras Legislature, Art. 286(3) had been amended and Act LII of 1952 had also been repealed. Consequently there was no Constitutional requirement for the Act being reserved for the assent of the President before it could be enforced. It is contended for the petitioner that the Act really enacted for a period, when if passed, it had to receive the Presidents assent for its enforcement and that therefore the State Legislature could not even in 1963 enact this provision affecting the taxation law in respect of the sale or purchase of goods which were goods declared essential for the life of the community. We do not see why such a fetter be placed on the legislative power of the State legislature. The State legislature is free to enact laws which would have retrospective operation. Its competence to make a law for a certain past period, depends on its present legislative power and not on what it possessed at the period of time when its enactment is to have operation. We therefore do not agree with thisis no force in this contention. The tax is imposed on the sale which took place within the State. The State legislature is competent to impose such a tax. The mere fact that the article sold in the State had been brought from outside the state does not make the sale of that article a sale in the Course of inter-State trade or commerce. It is only when A, in State X, purchased through a commission agent in a State Y and receives the articles purchased through the Commercial agency that the sale comes within the expression in the course of inter-State trade : See 1954 SCR 53     at p 70 : (AIR 1953 SC 333   at p.do not consider the contention sound. The Act makes provision for a period subsequent to the commencement of the Constitution and therefore is to be subject to the provisions of the Constitution.We therefore hold that sub-sec. (1) of S. 2 of the Act discriminates against imported hides and skins which were sold up to the 1st of August 1957 upto which date the tax on sale of raw hides and skins was at the rate of 3 pies per rupee or 19/16th per cent. This however does not mean that the sub-section is valid with respect to the sales which took place subsequent to August 1, 1957. The sub-section being void in its provisions with respect to a certain initial period, we cannot change the provision with respect to the period as enacted to the period for which it could be valid as that would be re-writing the enactment. We have therefore to hold sub-sec. (1) of S. 2 void, and accordingly hold so.In view of the provisions of sub-section (1) of S. 2 being invalid the other provisions of that section become unenforceable.