Kumara Pillai, M. S Menon, J.
The question involved in this reference is whether S. 21 of the Travancore Cochin General Sales Tax Act, 1125, is ultra vires or not. That section corresponds to S.16A of the Madras General Sales Tax Act, 1939, which has been held to be ultra vires by a Division Bench of the Madras High Court in AIR 1954 Mad. 833 . After an elaborate discussion of the arguments advanced Govinda Menon and Basheer Ahmed Sayeed, JJ., said
For all these reasons set forth in the foregoing paragraphs of this judgment, we are of opinion that S. 16A of the Madras General Sales Tax Act is ultra vires of the Constitution and of the provisions of the Criminal Procedure Code.
2. In an earlier case, AIR 1953 Mad. 105 , another Division Bench of the Madras High Court consisting Rajamannar, C.J., and Venkitarama Ayyar, J., held that S.16A was neither opposed to natural justice nor ultra vires of the Constitution and in 1950 Madras 619, Panchapakesa Ayyar, J. said
I have not been shown any valid reason, much less a ruling of any High Court, holding S.16A to be ultra vires. I hold that it is ultra vires.
The only passage in AIR 1954 Madras 833 discussing AIR 1953 Madras 105 reads as follows
In Syed Mohamed & Co. v. State of Madras, relied on by the learned Advocate General, a Bench of this Court has held that S.16A of the General Sales Tax Act is valid and it cannot be said to be opposed to natural justice or repugnant to the Constitution, in view of the elaborate procedure that has been made available to the assessee to question the validity of the order at a stage prior to the attempt by the State for the realisation of the same. In that decision, the matter arose in a writ and the whole Act was contended to be ultra vires and it was held that the plea that the Act was ultra vires could not be raised before the Tribunal which owes its very existence to the Act. With respect, we do not think that the reasoning contained in this decision applies to the present cases for the important reason that none of the points now raised before us had been raised nor considered in that decision.
3. The question involved in the reference is of considerable importance and we have come to the conclusion that the matter should be referred for disposal to a Full Bench under S. 24 of the Travancore Cochin High Court Act, 1125.
Order Accordingly -
(1.) ORDER BY FULL BENCH
This is a reference by the Sub-Divisional Magistrate, Alleppey, under S.432 of the Code of Criminal Procedure, 1898, and the question referred is whether S.21 of the Travancore Cochin General Sales Tax Act, 1125, is ultra vires of the Constitution and of the provisions of the said Code of Criminal Procedure. According to the learned counsel for the accused the section is also ultra vires of the Indian Evidence Act, 1872.
(2.) S.21 of the Travancore - Cochin General Sales Tax Act, 1125, reads as follows:-
The validity of the assessment of any tax, or of the levy of any fee or other amount made under this Act, or the liability of any person to pay any tax, fee or other amount so assessed or levied shall not be questioned in any criminal court in any prosecution or other proceeding, whether under this Act or otherwise.
The Section corresponds to S.16A of the Madras General Sales Tax Act, 1939, and in view of the Instrument of Accession executed by His Highness the Raj Pramukh on the 14th July 1949 and accepted by the Governor General of India on the 15th August 1949, it was agreed that the considerations to be borne in mind in dealing with the questions before us are the same as those obtaining in the State of Madras. The Instrument of Accession was executed in pursuance of Art. IX of the Covenant entered into between the Rulers of Travancore and Cochin in May 1949 and in accordance with the provisions of S. 6 of the Government of India Act, 1935, and by it the State accepted as matters with respect to which the Dominion Legislature may make laws for the State all matters mentioned in List I and List III of the Seventh Schedule to the Government of India Act, 1935, except matters relating to taxation.
(3.) Art. 1 of the Instrument of Accession reads:-
I hereby declare that I accede to the Dominion of India with the intent that the Governor General of India, the Dominion Legislature, the Federal Court and any other Dominion authority established for the purposes of the Dominion shall, by virtue of this Instrument of Accession but subject always to the terms thereof, and for the purposes only of the Dominion, exercise in relation to the United State such functions as may be vested in them by or under the Government of India Act, 1935, as for the time being in force in the Dominion of India and
I accept all matters enumerated in List I and List III of the Seventh Schedule to the Act as matters in respect of which the Dominion Legislature may make laws for the United State:
Provided that nothing contained in the said Lists or in any other provision of the Act shall be deemed to empower the Dominion Legislature to impose any tax or duty in the territories of the United State or to prohibit the imposition of any duty or tax by the Legislature of the United State in the said territories:
Provided further that where a law of the United State with respect to one of the matters enumerated in the said List III contains any provision repugnant to the provisions of an earlier Dominion Law or any existing law with respect to that matter, then, if the law of the United State having been reserved for the consideration of the Governor General of India has received the assent of the Governor General, the law of the United State shall prevail, in the United State but nevertheless the dominion Legislature may at any time enact further legislation with respect to the same matter:
Provided further that no Bill or amendment for making any provision repugnant to any law of the United State which, having been so reserved, has received the assent of the Governor General, shall be introduced or moved in the Dominion Legislature without the previous sanction of the Governor General.;