SHYAM SUNDER CHOWDHRY Vs. GIFT TAX OFFICER
HIGH COURT OF ALLAHABAD
SHYAM SUNDER CHOWDHARY
GIFT TAX OFFICER
Click here to view full judgement.
Jagdish Sahai, J. -
(1.)IN these two writ petitions, the vires of the Gift Tax Act (No. 18 of 1958) (hereinafter referred to as the Act) has been challenged. IN writ petition No. 566 of 1961, however, the order of the Gift Tax Officer also has been assailed on the ground that no finding has been recorded to the effect that the impugned transaction was mala fide and could not for that reason be a gift.
(2.)AS the main question raised in the two writ petitions is a common one we proceed to dispose them of by means of this common judgment.
We would first deal with the submission made by the learned counsel for the petitioner in the two petitions that the Act is ultra vires of the Parliament Mr. Gopi Nath Kunzru who has appeared for the petitioner in writ petition No. 1291 of 1959, has contended that neither the Central Legislature nor the State Legislature could pass the impugned law. Mr. S.P. Gupta who has appeared in writ petition No. 566 of 1961 has however submitted that the impugned legislation is bad so far as it includes in its ambit the imposition of tax even on gifts of land and buildings Relying upon Entry 49 of List II of the Seventh Schedule of the Constitution he has contended that all legislation relating to tax on land and buildings, including a tax on the gift of land and buildings fell in the sphere of the State Legislature and the Central Parliament was incompetent to have made the impugned Act applicable to Rifts of lands and buildings also.
On behalf of the State the submission is that the Parliament has legislative competence to enact the impugned statute by virtue of Article 248 read with Entry No. 97 of the Seventh Schedule of the Constitution. Article 248 of the Constitution reads :
"248. (1) Parliament has exclusive power to make any law with respect to any matter not enumerated in Concurrent List or State List.
(2) Such power shall include the power of making any law imposing a tax not mentioned in either of those Lists. "
Entry 97 of List I of the Seventh Schedule reads :
"97. Any other matter not enumerated in List II or List III including any tax not mentioned in either of those Lists."
The language of the two provisions is so exhaustive as to include legislation in respect of any matter not specifically provided for in any of the Entries given in the three Lists of the Seventh Schedule. It is admitted that there is no specific entry relating to tax on gifts.
(3.)THE argument of Mr. Kunzru, the learned counsel for the petitioner, that a gift tax cannot be imposed either under an Act of Parliament, or under an Act of a State Legislature is in the teeth of the express provision of Article 248 and the clear language of Entry 97 of List I of the Seventh Schedule of the Constitution. Mr. Kunzru has not been able to point out to us how a legislation like the impugned Act can escape the wide sweep of Article 248 and Entry 97. It is trite that an Entry must be read in its widest amplitude.
Mr. Kunzru cited M.P.V. Sundararamier and Co. v. State of Andhra Pradesh. AIR 1958 SC 468 and placed reliance upon the following words in paragraph 51 of that judgment :
"The above analysis--and it is not exhaustive of the Entries in the List--leads to the inference that taxation is not intended to be comprised in the main subject in which it might on an extended construction be regarded as included, but is treated as a distinct matter for purposes of legislative competence"
In our judgment this passage cannot be read so as to restrict the amplitude of Article 248 of the Constitution and Entry 97 of List I of the Seventh Schedule. Those provisions are so comprehensive as to include even taxation not specifically provided for in an independent entry.
Copyright © Regent Computronics Pvt.Ltd.