KILIKAR Vs. STO SPECIAL CIRCLE MATTANCHERRY
HIGH COURT OF KERALA
STO, SPECIAL CIRCLE, MATTANCHERRY
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(1.) These cases raise a common question, the validity of S.3 of the Kerala Surcharge on Taxes, Act 1957. They were beard together and a common judgment will suffice.
(2.) S.3 of the Kerala Surcharge on Taxes Act 1957, as it stands at present reads as follows:
"(1) The tax payable under the Kerala General Sales Tax Act, 1963, shall, in the case of a dealer whose turnover exceeds thirty thousand rupees in a year, be increased by a surcharge at the rate of five per centum of the tax payable for that year and the provisions of the Kerala General Sales Tax Act, 1963, shall, as the case may be, apply in relation to the said surcharge as they apply in relation to the tax payable under the said Act:
Provided that where in respect of declared goods as defined in clause (c) of S.2 of the Central Sales Tax Act, 1956, the tax payable by such dealer under the Kerala General Sales Tax Act, 1963, together with the surcharge payable under this sub-section, exceeds two per centum of the sale or purchase price, the rate Of surcharge in respect of such goods shall be reduced to such an extent that the tax and the surcharge together shall not exceed two per centum of the sale or purchase price.
(2) Notwithstanding anything contained to sub-s.(1) of S.22 of the Kerala General Safes Tax Act, 1963, no dealer referred to in sub-s.(1) shall be entitled to collect the surcharge payable under the said sub-section.
(3) Any dealer who collects the surcharge payable under sub-s.(1) in contravention of the provisions of sub-s.(2) shall be punishable with fine which may extend to one thousand rupees and no court below the rank of a Magistrate of the first class shall try any such offence,,''
(3.) Five contentions were urged on behalf of the assessees, They are: (1) S.3 should be considered as repealed by the Kerala General Sales Tax Act 1963, which came into force on 1-4-1963,
(2) S.3 is ultra vires of Art.14 of the Constitution,
(3) S.3 is ultra vires of Art.19(1)(f) and (g) of the Constitution,
(4) S.3 embodies an item of income taxation and is thus beyond the legislatives competence of the State, and
(5) S.3 imposes a tax on "professions, trades callings and employments" and hence the tax imposed cannot exceed the limit of Rs. 250/- per annum fixed by Art.276 of the Constitution.;
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