1. In these cases various issues of seminal importance are involved.
Pursuant to the directions given by this Court in Jindal Stainless Ltd. (2)
and Anr. v. State of Haryana and Ors. (2006 (7) SCC 241) various High
Courts have heard the Writ Petitions filed challenging the legality of levy of
Entry Tax in the State by concerned Statute of the State. In most of the
cases, Entry Tax has been introduced after abolition of Octroi. A series of
judgments of this Court, for example, Atiabari Tea Co. Ltd. v. State of
Assam (1961 (1) SCR 809), Automobile Transport (Rajasthan) Ltd. v.
State of Rajasthan (1963 (1) SCR 491), Khyerberi Tea Co. Ltd. v. State of
Assam (1964 (5) SCR 975), Meenakshi v. State of Karnataka (1984 Supp
SCC 326), Bolani Ores Ltd. v. State of Orissa (1974 (2) SCC 777) and
Kamaljeet Singh and Ors. v. Municipal Board, Pilkhwa and Ors. (1986 (4)
SCC 174) apart from Jindal’s case (supra) have been pressed into service by
the parties. Stand of the appellants in the present cases essentially is that
true nature of the levy of Entry Tax has to be seen and that has not been
done. With reference to paragraphs 31 and 42 of Jindal’s case (supra) it has
been submitted by assessees-appellants that Entry Tax is really in essence
not a tax in the classical sense, but a sub class of fee. Some High Courts by
the impugned judgment have held that Clauses (a) and (b) of Article 304 of
the Constitution of India, 1950 (in short the ‘Constitution’) are independent
of each other and if law is saved under Article 304 (a) then it need not be
tested with reference to Clause (b) of Article 304 for determining its
validity.
2. It is to be noted that almost all the cases on which the parties have
placed reliance did not relate to Entry Tax and related to levy in the context
of tax on vehicles brought inside the local area. These are commonly
known as transport cases. Those cases like Meenakshi’s case (supra) were
decided because of Presidential permission in terms of Article 304 was
there. The applicability of Part XIII is also in issue. It is not contended and
in our view rightly that compensatory tax is not levied on trade. Though
some of the important factors have been addressed to by the Constitution
Bench in Jindal’s case (supra) certain other important constitutional issues
are involved because the approach so far as the levy on transport cases
indicated above are concerned is conceptually and contextually different
from Entry Tax cases. In that sense, the foreign decisions, more
particularly, the Australian cases decided in the background of Section 95 of
the Australian Constitution may not have much relevance so far as cases
relating to Entry Tax are concerned.
3. In Jindal’s case (supra) in paras 16 and 46 it was noted as follows:
“16. To sum up: the pre-1995 decisions held that an
exaction to reimburse/recompense the State the cost of an
existing facility made available to the traders or the cost of a
specific facility planned to be provided to the traders is
compensatory tax and that it is implicit in such a levy that it
must, more or less, be commensurate with the cost of the
service or facility. Those decisions emphasised that the
imposition of tax must be with the definite purpose of
meeting the expenses on account of providing or adding to
the trading facilities either immediately or in future, provided
the quantum of tax is based on a reasonable relation to the
actual or projected expenditure on the cost of the service or
facility. However, the post-1995 decisions in Bhagatram
Rajeevkumar v. CST (1995 Supp (1) SCC 673) and in State of
Bihar v. Bihar Chamber of Commerce (1996 (9) SCC 136)
now say that even if the purpose of imposition of the tax is
not merely to confer a special advantage on the traders but to
benefit the public in general including the traders, that levy
can still be considered to be compensatory. According to this
view, an indirect or incidental benefit to traders by reason of
stepping up the developmental activities in various local areas
of the State can be brought within the concept of
compensatory tax, the nexus between the tax known as
compensatory tax and the trading facilities not being
necessarily either direct or specific.
xx xx xx
46. Applying the above tests/parameters, whenever a law
is impugned as violative of Article 301 of the Constitution,
the Court has to see whether the impugned enactment facially
or patently indicates quantifiable data on the basis of which
the compensatory tax is sought to be levied. The Act must
facially indicate the benefit which is quantifiable or
measurable. It must broadly indicate proportionality to the
quantifiable benefit. If the provisions are ambiguous or even
if the Act does not indicate facially the quantifiable benefit,
the burden will be on the State as a service/facility provider to
show by placing the material before the Court, that the
payment of compensatory tax is a reimbursement/recompense
for the quantifiable/measurable benefit provided or to be
provided to its payer(s). As soon as it is shown that the Act
invades freedom of trade it is necessary to enquire whether
the State has proved that the restrictions imposed by it by way
of taxation are reasonable and in public interest within the
meaning of Article 304(b) [see para 35 (of AIR) of the
decision in Khyerbari Tea Co. Ltd. v. State of Assam AIR
1964 SC 925)”
4. The concept of compensatory tax is judicially evolved and in a way
provides a balancing factor between federal control and State Taxing Board.
The concept really had its matrix in transportation cases and does not apply
to general notion of Entry Tax.
5. Therefore, considering the importance of the issues relating to
Articles 301 and 304 and Part XIII of the Constitution, we consider it
necessary to refer the matter to a larger Bench in terms of Article 145(3) of
the Constitution. The following questions are referred for the aforesaid
purpose:
1.Whether the State enactments relating to levy of Entry Tax have to be tested with reference to both Clauses (a) and (b) of Article 304 of the Constitution for determining their validity and whether Clause (a) of Article 304 is conjunctive with or separate from Clause (b) of Article 304?
2.Whether imposition of Entry Tax levied in terms of Entry 52 List II of 7th Schedule is violative of Article 301 of the Constitution? If the answer is in the affirmative whether such levy can be protected if Entry Tax is compensatory in character and if the answer to the aforesaid question is in the affirmative what are the yardsticks to be applied to determine the compensatory character of the Entry Tax.
3.Whether Entry 52, List II, 7th Schedule of the Constitution like other taxing entries in the Schedule, merely provides a taxing field for exercising the power to levy and whether collection of Entry tax which ordinarily would be credited to the Consolidated Fund of the State being a revenue received by the Government of the State and would have to be appropriated in accordance with law and for the purposes and in the manner provided in the Constitution as per Article 266 and there is nothing express or explicit in Entry 52, List II, 7th Schedule which would compel the State to spend the tax collected within the local area in which it was collected?
4.Will the principles of quid pro quo relevant to a fee apply in the matter of taxes imposed under Part XIII?
5.Whether the Entry Tax may be levied at all where the goods meant for being sold, used or consumed come to rest (standstill) after the movement of the goods ceases in the ‘local area’?
6.Whether the Entry Tax can be termed a tax on the movement of goods when there is no bar to the entry of goods at the State border or when it passes through a local area within which they are not sold, used or consumed?
7.Whether interpretation of Articles 301 to 304 in the context of Tax on vehicles (commonly known as ‘transport’) cases in Atiabari’s case (supra) and Automobile Transport’s case (supra) apply to Entry Tax cases and if so, to what extent.
8.Whether the non discriminatory indirect State Tax which is capable of being passed on and has been passed on by traders to the consumers infringes Article 301 of the Constitution?
9.Whether a tax on goods within the State which directly impedes the trade and thus violates Article 301 of the Constitution can be saved by reference to Article 304 of the Constitution alone or can be saved by any other Article?
10.Whether a levy under Entry 52, List II, even if held to be in the nature of a compensatory levy, it must, on the principle of equivalence demonstrate that the value of the quantifiable benefit is represented by the costs incurred in procuring the facility/services (which costs in turn become the basis of reimbursement/recompense for the provider of the services/facilities) to be provided in the concerned ‘local area’ and whether the entire State or a part thereof can be comprehended as local area for the purpose of Entry Tax? 6. The records be placed before the Hon’ble Chief Justice of India for necessary orders. It is open to the parties to move the Hon’ble Chief Justice of India for early hearing of the cases. ………J. (Dr. ARIJIT PASAYAT) (S.H. KAPADIA) New Delhi, December 18, 2008