Case: Mithan Lal &amp; Others Vs. State of Delhi &amp; Others

1. The petitioners are building contractors carrying on business in Delhi, and they have filed the present applications under Art. 32 of the Constitution challenging the validity of certain provisions of the Bengal Finance (Sales Tax)Act (Ben. VI of 1941) which had been extended to the State of Delhi by a notification dated 28th April 19512. The impugned provisions of the Act may now be referred to. Section 2 (d) of the Act defines good as including all materials, articles and commodities, whether or not to be used in the construction, fitting out, improvement or repair of immovable property . Sale is defined in S. 2 (g) as including any transfer of property in goods for cash or deferred payment or other valuable consideration, including a transfer of property in goods involved in the execution of a contract . . . . . . Section 2 (b) defines contract as meaning, omitting what is not relevant,any agreement for carrying out for cash or deferred payment or other valuable consideration- the construction, fitting out, improvement or repair of any building, road, bridge or other immovable propertySale price is defined in S. 2 (h) (ii) as meaning valuable consideration for the carrying out of any contract, less such portion as may be prescribed of such amount, representing the usual proportion of the cost of labour to the cost of materials used in carrying out such contract. Turnover is defined in S. 2 (i), and is as follows :Turnover used in relation to any period means the aggregate of the sale-prices or parts of sale prices receivable, or if a dealer so elects, actually received by the dealer during such period after deducting the amounts, if any, refunded by the dealer in respect of any goods returned by the purchaser within such periodSection 4, which is the charging section, provides that .....every dealer whose gross turnover during the year immediately preceding the commencement of this Act exceeded the taxable quantum shall be liable to pay tax under this Act on all sales effected after the date so notified3. The Bengal Finance (Sales Tax) Act 1941, was a law passed by the Legislature of the Province of Bengal and applied only to sales effected within that Province, and after the partition of the Country, to sales effected within the State of West Bengal. Underthe Government of India Act, 1935, Delhi was a Chief commissioners Province administered by the Governor-General, and under the Constitution, it became a Part C State, and Art. 239 vested its administration in the President acting through a Chief Commissioner or a Lieutenant-Governor as he might think fit. Article 246 (4) which is material for the present purpose is as follows :Parliament has power to make laws with respect to any matter for any part of the territory of India not included in Part A or Part B of the First Schedule notwithstanding that such matter is a matter enumerated in the State ListIn exercise of the power conferred by this Article, Parliament enacted the Part C States (Laws) Act No. XXX of 1950, and S. 2 thereof is as follows :The Central Government may, by notification in the Official Gazette, extend to any Part C State (other than Coorg and the Andaman and Nicobar Islands) or to any part of such State, with such restrictions and modifications as it thinks fit, any enactment which is in force in a Part A State at the date of the NotificationOn 28th April 1951, the Chief Commissioner of Delhi issued a notification under this section extending the operation of the Bengal Finance (Sales Tax) Act, 1941, to Delhi as from 1st November 1951. Acting under the provisions of this Act, the Sales Tax Officer, Karolbagh, Delhi issued on 12th June 1952, notices to the petitioners calling upon them to submit returns of their receipts from building contracts and to deposit the taxes due thereon. In compliance with these notices, the petitioners were sending quarterly returns of their taxable turnover and assessment orders were also made in respect of their annual turnover for the years 1951-1952 and 1952-1953, and the amounts due thereunder had also been paid. For the year 1953-1954, the quarterly returns had been submitted and the tax due thereon deposited, and proceedings were pending for assessment of tax for that year. This was the position when the Madras High Court pronounced its decision in Gannon Dunkerley and Co. v. State of Madras 1954-5 S T C 216 : (A I R 1954 Mad 1130) (A), that the provisions of the Madras General Sales Tax Act, 1939, imposing tax on the supply of materials in construction works wereultra viresthe powers of the Provincial Legislature under Entry 48 in List II, Sch. VII tothe Government of India Act, 19354. Basing themselves on this judgment, the petitioners who had been acting so far on the view that the provisions of the Bengal Finance (Sales Tax) Act, 1941, imposing tax on construction contracts were valid and had been paying tax in that belief, filed Civil Writs Nos. 244-D and 247 of 1954 in the Punjab High Court challenging the validity of those provisions on the ground that there was no sale of materials used in execution of a building contract, and that a tax thereon was not authorised by Entry 45. Now, the present attempt of the petitioners is to reopen the question which had been answered against them by the High Court of Punjab by resort to proceedings under Art. 32 of the Constitution.

Reasoning: 7. In our opinion, this contention is well-founded. Art. 246,Cls. (2) and (3) of the Constitution confer on the Legislatures of the State mentioned in Parts A and B the power to make laws with respect to the matters enumerated in Lists II and III of Sch. VII , and one of those matters is Tax on the sale of goods, Entry 54 in List II. It is with reference to the corresponding Entry inthe Government of India Act,, Entry 48 in List II,that we have held in C. A. No. 210 of 1956: (AIR 1958 S C 560) (B), that the power to tax sale of goods conferred by that Entry has reference only to sales as defined inthe Sale of Goods Act, 1930. But here, we are concerned not with a law of a State mentioned in Part A or Part B but with that of a State in Part. C Under Art. 246 (4) it is Parliament that has the power to legislate for Part C States, and that power is untrammelled by the limitations prescribed by Art. 246, Cls. (2) and (3) and Entry 54 of List II, and is plenary and absolute, subject only to such restrictions as are imposed by the Constitution, and there is none such which is material to the present question. It would therefore be competent to Parliament to impose tax on the supply of materials in building contracts and to impose it under the name of sales tax, as has been done by the Parliament of the Commonwealth of Australia or by the Legislatures of the American States. The decision in C. A. No. 210 of 1956: (AIR 1958 S C 560) (B), which was given on a statute passed by the Provincial Legislature underthe Government of India Act,has therefore no application to the present caseThis argument proceeds on a misapprehension of the true scope of Art. 248.That Article has reference to the distribution of legislative powers between the Centre and the States mentioned in Parts A and B under the three Lists in Sch. VII, and it provides that in respect of matters not enumerated in the Lists including taxation, it is Parliament that has power to enact laws. It has no application to Part C States, for which the governing provision is Art. 246 (4). Moreover, when a notification is issued by the appropriate Government extending the law of a Part A State to a Part C State, the law so extended derives its force in the State, to which it is extended from S. 2 of the Part C States (Laws) Act enacted by Parliament. The result of a notification issued under that section is that the provisions of the law which is extended become incorporated by reference, in the Act itself, and therefore a tax imposed thereunder is a tax imposed by Parliament. There is thus no substance in this contentionThough the language of S. 2 might, in the abstract, be susceptible of the construction which the petitioners seek to put upon it, in the context that is not, in our opinion, its true meaning. What is intended by that section is that with reference to different topics of legislation on which the several States in Part A had enacted different statutes, the authority acting under S. 2 should have the discretion to extend that statute in any of the Part A States which is best suited to the conditions in the particular Part C State to which it is to be extended, and that, further, the authority should have the power to extend it with suitable restrictions and modifications. It could not have been intended by this section that the authority concerned should take upon itself to examine the vires of each and every one of the provisions in the statute, and then extend only such of them as it considers to be valid. In our view, the expression enactment which is in force in a Part A State must be construed as meaning statute which is in operation in a Part A State as distinct from a statute which had been repealed and it cannot be interpreted as having reference to individual sections or provisions of a statute10. But even if we accept the narrow construction contended for by the petitioners, that would not make any difference in the result, as the authority conferred by S. 2 on the Government to extend enactments in force in part A State includes a power to do so with restrictions and modifications, and it was within the competence of the Government acting on this provision to incorporate on its own authority the impugned provisions by way of modification of the Bengal Finance (Sales Tax) Act, 1941. It is said that the notification does not, as a fact, purport to modify the Bengal Act, but merely extends the whole of it on a mistaken notion that it is all valid. But that does not affect the position. The notification intends that all the provisions of the Bengal Finance (Sales Tax) Act, 1941, should operate in the State of Delhi, and if that could be effectuated by recourse being had to any of the powers of the Legislature, that should be done and the legislation upheld as referable to that power.Ut res magis valeat quam pereathe answer to this contention is that the modification made by the Central Government, assuming that that is its true character, does not involve any change of policy underlying the Bengal Finance (Sales Tax) Act, 1941. Indeed, the modification gives effect to the policy of that enactment which was to bring construction contracts within the ambit of the taxation powers of the State, and which failed only for want of legislative authority. Whether we view the notification as one extending a subsisting statute to Delhi or as extending it with modifications so far as the impugned provisions are concerned, it isintra viresS. 2.