Andhra Pradesh High Court
Judges : S.ANANDA REDDY, S.R.NAYAK
Shaw Wallace and Co., Ltd. - Appellant
Versus
Deputy Commercial Tax Officer, Secunderabad - Respondent
Decided On : 07-11-01
Andhra Pradesh Tax on Professions, Trades, Callings and Employments Act, 1987 – Section 2, 6, Rule 4 – Companies Act, 1956 – Constitution of India – Article 276 (2), 14, 265, 19, 15 (1), 31-A – Andhra Pradesh cooperative Societies Act, 1964 – General Clauses Act, 1897 – Section 3, 32-KK – Hyderabad Municipal Corporation act – Andhra Pradesh municipalities Act, 1965 – Andhra Pradesh Gram Panchayats act, 1964 – Section 32, 33, 35 – Sovereignty – Right of property – Writ of mandamus – Republican Government – Fundamental rights – Petitioner in WP is M/s. Shaw Wallace and Company limited, a Bublic Limited Company registered under Companies Act, 1956 – Petitioner company has its principal place of business and it is registered under companies Act, 1956 – By same notice, 1st respondent also informed petitioner- company that it is liable to pay penalty for each day of delay – Writ petition was presented in this Court on praying for following relief for reasons stated in accompanying affidavit, it is prayed that Honble Court may be pleased to issue a writ of mandamus or any other appropriate writ or order or direction declaring Explanation to definition of person and as well as explanation-I to I Schedule to andhra Pradesh Tax on Professions, trades, Callings and Employment act, 1987 as amended in 1996 as unreasonable and unconstitutional and ultra vires Article 276 (2) of constitution of India and accordingly strike them down and further declare that petitioner is liable to pay profession tax at rate per annum under item 19 of Schedule irrespective of number of branches or offices it has in State of Andhra Pradesh and pass such other order or orders as Hon ble Court may deem fit and proper in circumstances of case – Held, It is relevant to note that Supreme Court in Hariprasad v. AD. Divekar, AIR 1957 SC 121, held that it is permissible for Legislature to introduce a fiction for purpose of legislation and such artificial definition might include a meaning different from or in excess of ordinary acceptation of word which was subject of definition – In view of aforesaid rulings, Court cannot accept contention of learned counsel for petitioners that State legislature lacks competence to define a person so as to include even a branch of a firm, company, corporation or other corporate body, any society, club or association – In taking this view, court is also fortified by judgment of Calcutta High Court in dayamaya Devi v. State of West Bengal, 1974 78 Cal. WN 639 and also judgment of Karnataka High Court in Bhaskar v. State of Karnataka, AIR 1975 Karn. 55 – Court is therefore unable to agree with submission of learned Counsel for petitioners that Explanation to word person as defined under Section 2 (j) of Act and Explanation No. 1 to first Schedule of Act offend provisions of clause (2) of Article 276 of Constitution – Ordered Accordingly
( 1 ) IN this batch of four writ petitions, the petitioners have assailed the constitutional validity of the Explanation to the definition of the term "person" defined in clause (j) of Section 2 of the Andhra pradesh Tax on Professions, Trades, Callings and Employments Act, 1987 (Act No. 22 of 1987), for short the Act as well as explanation No. I to the First Schedule of the said Act as amended by Act No. 29 of 1996.
( 2 ) THE petitioner in WP No. 13 04 of 1998 is M/s. Shaw Wallace and Company limited, a Bublic Limited Company registered under the Companies Act, 1956. The petitioner company has its principal place of business at Secunderabad in Andhra pradesh State and it is registered under the companies Act, 1956. The Deputy commercial Tax Officer, General Bazar circle, Secunderabad, the 1st respondent in the writ petition placing reliance on the explanation to the definition of the "person" under clause (j) of Section 2 as well as explanation No. I to the First Schedule of the Act issued the notice GI No.-/97, dated -12-1997 totally demanding payment of a sum of Rs. 3,42,000/- (Rupees three lakhs and forty two thousand only) towards the tax payable under the Act at the rate of rs. 2,500/- in respect of 68 branches of the petitioner company for the assessment year 1996-97 and at the rate of Rs. 2,500/- in respect of 69 branches of the petitioner company for the assessment year 1997-98 within seven (7) days from the date of receipt of the notice. By the same notice, the 1st respondent also informed the petitioner- company that it is liable to pay penalty of Rs. 30/- for each day of delay. In those circumstances, the writ petition was presented in this Court on 19-1-1998 praying for the following relief:"for the reasons stated in the accompanying affidavit, it is prayed that the Hon ble Court may be pleased to issue a writ of mandamus or any other appropriate writ or order or direction declaring the Explanation to the definition of the "person" and as well as "explanation-I" to the I Schedule to the andhra Pradesh Tax on Professions, trades, Callings and Employment act, 1987 as amended in 1996 as unreasonable and unconstitutional and ultra vires the Article 276 (2) of the constitution of India and accordingly strike them down and further declare that the petitioner is liable to pay profession tax at the rate of Rs. 2,500/- per annum under item 19 of the i Schedule irrespective of number of branches or offices it has in the State of Andhra Pradesh and pass such other order or orders as the Hon ble Court may deem fit and proper in the circumstances of the case. "
( 3 ) IN WP No. 4364 of 2001, the petitioner M/s. Ch. Yegnaiah and Sons is the partnership firm and is engaged in the business of running outlets for petroleum products. The petitioner firm has its principal place of business at Secunderabad in the state of Andhra Pradesh and its registered office is situated at 1/a, R. P. Road, secunderabad -500 003. The petitioner has enrolled as an assessee under Section 6 of the Act read with Rule 4 of the Andhra pradesh Tax on Professions, Callings and employment Rules, 1987, for short the rules framed under the said Act. The petitioner firm in addition to its principal business premises at Secunderabad has other petroleum outlets outside Hyderabad and Secunderabad also in places like jadcherla in Mahabubnagar District, vijayapuri (N) in Nalgonda District, Kama reddi in Nizamabad District and Medak in medak District. The prayer of the petitioner reads:"for the reasons stated in the accompanying affidavit, it is prayed that the Hon ble Court may be pleased to issue a writ of mandamus or any other appropriate writ or order or direction declaring the Explanation to the definition of the "person" and as well as "explanation 1 to the I Schedule to the andhra Pradesh Tax on Professions, trades, Callings and Employment Act, 1987 as amended in 1996 as unreasonable and unconstitutional and ultra vires the article 276 (2)
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