B SEETHARAMAIAH Vs. ASSISTANT SALES TAX OFFICER

JUDGEMENT

(1.) IN all these petitions filed under Article 226 of the Constitution of India, the legality of the levy of sales tax under the provisions of the Mysore Sales Tax Act on the turnover of petitioners has been challenged. The turnover represents the amounts realised by sale of eatables and refreshments in hotels or restaurants kept by petitioners. Under section 3(a) of the Act the tax is payable on the annual turnover of every dealer. Sub-section (b) which at first prescribed the rate at which the tax is payable at three pies per rupee was altered by Act 25 of 1954 and now reads as follows :-

(2.) SECTION 3(2) provides that in regard to the articles specified in Schedule 1 the tax is to be levied and at the point mentioned therein. Section 3(2-A) deals with liability of persons not having a place of business in Mysore.

(3.) THE possibility of this is not sufficient to determine the nature of the tax and may affect the consideration of the tax being direct or indirect. Nor does it answer the criticism that the provision amounts to "colourable legislation" inasmuch as the tax which purports to be one on sales is in essence not so. These contentions are not without some force but do not help the petitioners. The section under which the levy is to be made is 3 not 11. A difficulty or disability is no doubt caused to petitioners by section 11 but this cannot be an excuse for their not being charged. The payment may diminish the gains or even increase the loss but has to be made irrespective of this, since the recovery of the tax from others is not a right conferred by the Sales Tax Act or the Constitution, much less a condition precedent to it. Further, the petitioners have not been taxed as yet and the petitions have been filed before the turnover is determined so that the bearing of section 11 in relation to petitioners is at best uncertain.