(1.)"it is common ground that the tax assuming that the Act is really a taxing statute and not a confiscatory measure, as contended on behalf of the petitioners, has no reference to income, either actual or potential, from the property sought to be taxed. Hence, it may be rightly remarked that the Act obliges every person who holds land to pay the tax at the flat fate prescribed whether or not he makes any income out of the property, or whether or not the property is capable of yielding any income. The Act, in terms, claims to be 'a general revenue settlement of the state' (Section 3 ). Ordinarily a tax on land or land revenue is assessed on the actual or the potential productivity of the land sought to be taxed. In other words, the tax has reference to the income actually made, or which could have been made, with due diligence, and, therefore, is levied with due regard to the incidence of the taxation". So said the Chief Justice of India in K. T. Mooppil Nair v. State of Kerala, AIR 1961 SC 552. This passage has been relied on by counsel for the petitioner in this case and he contends, that for the same reason for which the supreme Court struck down the Travancore-Cochin Land Tax Act (15 of 1955 as amended by Act 10 of 1957), the statute impugned in this petition, the Kerala plantations (Additional Tax) Act. 1960, must also be removed from the statute book.
(2.)IT is necessary to refer to the arguments advanced in support of this contention. They were mainly two-fold. Firstly, it was urged that the State Legislature had no legislative competency to pass the Act impugned. Secondly, it was argued that the statute, the Kerala Plantations (Additional Tax) Act, 1960, is discriminatory and violative of Article 14 of the Constitution.
(3.)IN support of the first of these contentions, counsel referred to Item 45 in List II of the Seventh Schedule to the Constitution. He said that the Act does not purport to be a tax on agricultural income and would not, therefore, fall under Item 46 of the same List. His contention is that it would not fall under Item 45 either, for, according to him, the tax. imposed is not on land, but, if it amounts to anything, it can only be termed to be a tax on trees. In order to understand the scope of this contention, it is necessary to refer to some of the provisions of the statute. The preamble of the statute says:
"whereas it is expedient to provide for the levy of an additional tax on plantations in the State of Kerala". And "plantation" is defined in section 2 (6) thus: "plantation" means land used for growing one or more of the following: (i) cocoanut trees; (ii) arecanut trees; (iii) rubber plants; (iv) coffee plants; (v) tea plants; ' (vi) cardamom plants; (vii) pepper vines. " the charging Section, Section 3, reads as follows: "3. Charge of plantation tax: (1) Subject to the" other provisions contained in this Act, for every financial year commencing on and from the first day of April, 1960, there shall be charged in respect of the lands comprised in plantations held by a person on the corresponding valuation date an additional tax (hereinafter referred to as 'plantation tax) at the rates specified in Schedule 1; and the person holding such plantations shall be liable to pay the plantation tax. (2) The plantation tax assessed under this Act shall be payable by the assessee for every financial year until the extent of plantations held by him is revised and the plantation tax is assessed on the basis of the revised extent under Sub-section (3), and from the financial year immediately following the revision the plantation tax assessed on behalf of such revision shall be payable. (3) The extent of plantations held by a person determined under section 5 shall ordinarily be revised at the end of five years, but the assessing authority may, either suo motu or on application by an assessee, revise the extent so determined, before the expiry of five years; and where such extent has been revised as aforesaid, the plantation tax payable thereon shall be assessed on the basis of the revised extent (4) For purposes of the assessment of plantation tax payable by a person under this Act, the extent of plantations held by him shall be determined in the manner specified in Schedule II. (5) The tax charged under this section shall be in addition to the basic tax payable in respect of those lands under the Land Tax Act, 1955. " It will be seen from Sub-section (1) of section 3 that the rate of tax is that specified in Schedule I. A glance at that schedule reveals that there is no tax on plantations which are below five acres in extent. " and the tax on plantations above five acres in extent is: (a) on the first two acres Nil (b) on the remaining extent Eight rupees pe sub-section (4) of Section 3 is significant It provides that the extent of plantations held by a person shall be determined in the manner specified in Schedule II. Schedule II is as under: "for the purposes of the assessment of plantation tax payable by a person, the extent of plantations held by him shall be deemed to be the aggregate of the following, expressed in acres, namely: (i) the quotient obtained by dividing the total cumber of bearing cocoanut trees standing on all lands held by him by 85; (ii) the quotient obtained by dividing the total number of bearing arecanut trees standing on all lands held by him by 600; (iii) the quotient obtained by dividing the total number of yielding rubber plants standing on all lands held by him by 180, (iv) the quotient obtained by dividing the total number of yielding coffee plants standing on all lands held by him by 600; (v) the quotient obtained by dividing the total number of yielding pepper vines standing on all lands held by him by 400; (vi) the extent of lands on which tea plants are grown which have begun to yield crops; (vii) the extent of lands on which cardamom plants are grown which have begun to yield crops: provided that where the total extent of land held by a person, which is cultivated with the aforesaid crops, is less than the aggregate calculated aft above, the actual extent alone shall be deemed to be the extent of plantations held by him".