# Kil1kar v. Sales Tax Officer, 21 S.T.C. 253, and A. S. Ra111achandra Rao v

- **Citation:** [1975] 1 S.C.R. 121
- **Court:** Supreme Court of India
- **Decided:** 1974-04-17
- **Case number:** Writ Petition No. 363 of 1969
- **Bench:** A. N. Ray, K. K. Mathew, A. ALAGIRISWAMi, P. K. Goswami, R. S. Sarkaria
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kil1kar-v-sales-tax-officer-21-s-t-c-253-and-a-s-ra111achandra-rao-v-6303
- **Pages:** 6

## Headnote

Tamil Nadu Additional
Sales Tax Act. 1970-Constitutional
validityWh-!ther outside the ·.:.:op~ of entry 54, List II-Whether viol&tes fundamental
right under Art. J9(1)(f) and (g).
Constitution of India, 1950-Art. 19(1)(f) and (g) Entry 54.
List Il,
Schedule Vil.
C
The Tamil Nadu Additional Sales-tax Act 1970 imposed additional sales-tax
ot 5% on a dealer whose annual total turnover exceeded Rs.
ten lacs. Writ
petitions questioning the constitutional validity _of the Act were dismissed by the
High Court.
In appeal it was contended that (i) the State legislature had no
power to enact the Act as the tax was outside the scope of entry 54 of List II; (ii)
that the provisions of the Act violated the fundamental rights of the appellant
under 1\rl. 19(1)(f) anct (g) of the Constitution and (iii) that the provisions of
the Act imnosed different rates of tax upon different dealers depending on their
0
turnover and were. therefore! violative of Art. 14 of the Constitution.
E
F
G
H
Disini.;;sing the appeal.
HELD: (1) The contention of the appellants that the additional sales-tax is
not a tax on sales but on the income of the dealers is without any basis.
The
additional tax is really a tax on the sale of goods.
The object of the Act is to
increase the tax on the sale or purchase of goods imposed by the Tamil Nadu
General Sales-tax Act. 1959 and the fact that quantum of the additional tax is
determined with reference to the sales-tax imposed would not alter its character.
Th¢ additional sales-tax is to be imposed only if the turnover of a dealer exceeds
&. 10 lacs. It is in reality a tax un the aggregate of sales effected by a dealer
during a year.
[1230-E)
Kil1kar v. Sales Tax Officer, 21 S.T.C. 253, and A. S. Ra111achandra Rao v.
State of Andhra Pradesh, 25 S.T.C. 133, approved.
(2) (a) It cannot be said that the provisions ot the Act imposed any unrea·
son.able restrictions upon the appellants' right to carry on trade. It is no doubt
true that every tax imposes some restrictions upon the right to Carry on business
but it would not follow that the imposition of ta·x in question was an unreasonable
restric:-tion upon the appellants' fundamental right to carry on trade. · GeneraUy
speaking, the amount or rate of a tax is a matter exclusively within legislative
judgment and as long as a tax retains its avowed character and does not confiscate.
the property to the State under the guise of a tax, its reasonableness is outside the
judicial ken.
[123F-124A]
. . (b) It is not necessary that the dealer should be enabled to pass on the
incidence of the tax on sale to the purchaser in order that it might be a tax
on the sale of goods.
Although the legal incidence of a tax on sale of goods
under the. Act falls squarely on the dealer, it may be that he can add the tax
to the Pnce .of the goods sold and thus pass it on to the purchaser. It is not
Possible to say tha.t_ because a dealer is disabled from passing on the incidence
of tax to the purchaser to provisions of the Act imnose unreasonable restriction
upon the fundamental rights of the appellants under Art. 19 (I) (f) or 19(1) (g).
[124B-C, C-]
!. K. lute Mills Co. v. State of U.P., [1962] 2 S.C.R. 1 at 13, and Konduri
Buchiraialigam v. State of Hyderabad, [1958] 9 S.T.C. 397, referred to.
(3) It can be said that a legislative classification making the burden of the
tax heavier in proportion to the increase in turnover would be reasonable.
A
122
SUPREME COURT REPORTS
(1975] 1 s.c.R.
flat. rat_e i~ thought to be less efficient than the graded one as an instrument of
A
social Justice.. The economic wisdom of a tax is within the exclusive province
~f Ie~1slat_ure:
The only question for the Court to consider it whether there
is rattonahty 1n the bdief of the legislature that capacity to pay the tax increases,
by and large with an incr~ase of receipts.
An attempt to proportion the paYment
to capacity to pay and thus bring about a real and factual equality cannot be
rul.ed out as irrelevant in levy of

## Text

•
A
B
S. KODAR
v .
STATE OF KERALA
April 17, 1974
121
[A. N. RAY, C. J., K. K. MATHEW, A. ALAGIRISWAMi, P. K. GOSWAMI
AND R. S. SARKARIA, JJ.]
Tamil Nadu Additional
Sales Tax Act. 1970-Constitutional
validityWh-!ther outside the ·.:.:op~ of entry 54, List II-Whether viol&tes fundamental
right under Art. J9(1)(f) and (g).
Constitution of India, 1950-Art. 19(1)(f) and (g) Entry 54.
List Il,
Schedule Vil.
C
The Tamil Nadu Additional Sales-tax Act 1970 imposed additional sales-tax
ot 5% on a dealer whose annual total turnover exceeded Rs.
ten lacs. Writ
petitions questioning the constitutional validity _of the Act were dismissed by the
High Court.
In appeal it was contended that (i) the State legislature had no
power to enact the Act as the tax was outside the scope of entry 54 of List II; (ii)
that the provisions of the Act violated the fundamental rights of the appellant
under 1\rl. 19(1)(f) anct (g) of the Constitution and (iii) that the provisions of
the Act imnosed different rates of tax upon different dealers depending on their
0
turnover and were. therefore! violative of Art. 14 of the Constitution.
E
F
G
H
Disini.;;sing the appeal.
HELD: (1) The contention of the appellants that the additional sales-tax is
not a tax on sales but on the income of the dealers is without any basis.
The
additional tax is really a tax on the sale of goods.
The object of the Act is to
increase the tax on the sale or purchase of goods imposed by the Tamil Nadu
General Sales-tax Act. 1959 and the fact that quantum of the additional tax is
determined with reference to the sales-tax imposed would not alter its character.
Th¢ additional sales-tax is to be imposed only if the turnover of a dealer exceeds
&. 10 lacs. It is in reality a tax un the aggregate of sales effected by a dealer
during a year.
[1230-E)
Kil1kar v. Sales Tax Officer, 21 S.T.C. 253, and A. S. Ra111achandra Rao v.
State of Andhra Pradesh, 25 S.T.C. 133, approved.
(2) (a) It cannot be said that the provisions ot the Act imposed any unrea·
son.able restrictions upon the appellants' right to carry on trade. It is no doubt
true that every tax imposes some restrictions upon the right to Carry on business
but it would not follow that the imposition of ta·x in question was an unreasonable
restric:-tion upon the appellants' fundamental right to carry on trade. · GeneraUy
speaking, the amount or rate of a tax is a matter exclusively within legislative
judgment and as long as a tax retains its avowed character and does not confiscate.
the property to the State under the guise of a tax, its reasonableness is outside the
judicial ken.
[123F-124A]
. . (b) It is not necessary that the dealer should be enabled to pass on the
incidence of the tax on sale to the purchaser in order that it might be a tax
on the sale of goods.
Although the legal incidence of a tax on sale of goods
under the. Act falls squarely on the dealer, it may be that he can add the tax
to the Pnce .of the goods sold and thus pass it on to the purchaser. It is not
Possible to say tha.t_ because a dealer is disabled from passing on the incidence
of tax to the purchaser to provisions of the Act imnose unreasonable restriction
upon the fundamental rights of the appellants under Art. 19 (I) (f) or 19(1) (g).
[124B-C, C-]
!. K. lute Mills Co. v. State of U.P., [1962] 2 S.C.R. 1 at 13, and Konduri
Buchiraialigam v. State of Hyderabad, [1958] 9 S.T.C. 397, referred to.
(3) It can be said that a legislative classification making the burden of the
tax heavier in proportion to the increase in turnover would be reasonable.
A
122
SUPREME COURT REPORTS
(1975] 1 s.c.R.
flat. rat_e i~ thought to be less efficient than the graded one as an instrument of
A
social Justice.. The economic wisdom of a tax is within the exclusive province
~f Ie~1slat_ure:
The only question for the Court to consider it whether there
is rattonahty 1n the bdief of the legislature that capacity to pay the tax increases,
by and large with an incr~ase of receipts.
An attempt to proportion the paYment
to capacity to pay and thus bring about a real and factual equality cannot be
rul.ed out as irrelevant in levy of tax on the sale of purchase of goods.
The
obJect of a tax is not only to raise revenue bot also to regulate the economic
life of the 'ociety.
rI24H-!25D; 126A-B]
B
ORIGINAL JURISDICTION : Writ Petition No. 363 of 1969.
Petition Under Article 32 of the Constitution of India.
WITH
CIVIL APPEALS Nos. 1010-1011 OF 1973.
From the Judgment and Order dared the 6th April, 1972 of the
c
/
Madras High Court in W.P. Nos. 3826-3827170.
AND
CIVIL APPEALS Nos. 2552-2559172, 179-180174, 2/73, 2684/
72, 1022173.
From the Judgment and Order dated
! !th August
1971
of
Madras High Court in W.P. Nos. 3551-52, 3564-3567,
4056-57/
D
70, 3967-68 /70, 3934/70, 3960170 and 496/71 respectively.
~ND
CIVIL APPEAL No. 967-- OF 1971.
From the Judgment and Order dated 19th August, 1971 of the
Madras High Court in WP No. 4469170.
E
AND
CIVIL APPEAL Nos. 929-930 OF 1973.
From the Judgment and Order dated the 11th August, 1971 of
the Madras High Court in W .P. No. 293 of 1971.
K. Jayari:l,'11 for the Petitioners (In WP. 363 /69) and for
the
F
Appe!lants in CAS. Nos. 1010-1011/73, 2552-2559/72 and 2/73.
D. D.· Sharma for the Appellant in CA 2684172.
Mrs. S. Gopalakrishnan for the Appellant In CAS. 927173 and
l 79-80174.
K. S. Ranwmurthy and B. R. Agarwr~la for
the
appellant in
CA 1022173.
K. S. Ramamurthy and D. N. Gupta for the Appellant in CAS.
929'-G0/73.
Dr. Syed Mohammed and K. M. K. Nair for Respondent in WP.
363/69.
S. Govind Swaminadhan, Advocate General fo~
Tamil Nadu,
A. V. Rangam,
K. Venkataaswamt
Subhashini for Respcindent Jn all the appeals.
the State of
and Miss
A.
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G
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s. KODAR v. KERALA (Mathew, !.)
12 3'
The Judgment of the Court was delivered by
MATHEW, J.-The question raised in the Civil Appeals are substantially the same as those raised in the writ petition. We will deal
with the Civil Appeals and our decision there will govern and dispose
of the writ petition .
The appellants filed writ petitions before the High Court of Madras.
challenging the validity of the Tamil N adu Additional Sales Tax Act
(Act No. 14 of 1970), 1970 (hereinafter referred to as the Act) on
the ground that the State Legislature has no co1!1petance to enact. it,
that its provisions violated their fundamental
nghts . under
arhcle
19(l)(f), 19(1)(g) and article 14 of the Consut~t1on. The High
Court dismissed the writ petitions by a common
Judgment.
These
appeals are filed on the basis of a certificate from the High Court.
The material provisions of the Act are as follows. Section 2(1)
provides that the tax payable under the Tamil Nadu General Sales
Tax Act, 1950, shall, in the case of a dealer whose ,total turnover for
a year exceeds 10 lakhs of rupees, be increased by additional tax at
the rate of 5 per cent of the tax payable by that dealer for that year
and the provisions of the Tamil Nadu General Sales Tax Act, 1959,
shall apply in relation to the additional tax payable under the said Act.
Sub-section (2) of s. 2 says that notwithstanding anything con·
tained in the Tamil Nadu General Sales Tax, 1959, no dealer referred
to in sub-section ( 1) shall be entitled to collect the
additional tax
payable under the said sub-section.
Sub-section ( 3) of s. 2 states that any dealer who collects the
additional tax payable under sub-section (1), in contravention of the
provisions of sub-section (2) shall be punishable with fine which may
extend to one thousand rupees.
Sub-section ( 1) of s. 3 says that the tax payable by any importer
or wholesale dealer under the Tamil Nadu Sales of Motor Spirit Taxation- Act, 1939, shall be increased by an additional tax at the rate of
five per cent of the tax payable under the said Act and the provisions
of the said Act shall apply in relation to the tax payable under the
said Act. Sub-sections (2) and (3) of s. 3 are to the same effect as
sub-sections (2) and (3) of s. 2
Section 4 relates to the rule making power. In the exercise of this
power, rules have been framed which are called the Tamil Nadu Additional Sales Tax Rules, 1970.
The appellants contend firstly that the legislature of Tamil N adu
has no power to enact the Act as the tax imposed by the Act is a tax
on the income of the dealer, and that the imposition of such a tax is
outside the scope of entry 54 List II. Secondly, they contend that the
provision of the Act in so far as it prohibits a dealer from collecting
the tax from purchaser, is an unreasonable restriction upon their
fundamental right to carry on trade under article 19(1) (g) and of
their right to hold property under article 19 (I )(f). Thirdly, they sub·
mit that the provisions of the Act are violative of their fundamentaf
124
SUPREME COURT REPORTS
[1975] 1 s:c.R.
eight uuder article 14 in that they impose different rates of tax on the
A
sale of same goods according to the turnover of the dealer.
·
As regards the contention that the State Legislature has no power
to pass the measure, we are of the view that additional tax is really a
tax on the sale of goods. The object of the Act, as is clear from its
provisions, is to increase the tax on the sale or purchase of goods
imposed by Tamil Nadu General Sales Tax Act, 1959 and the fact that
quantum of the additional tax is determined with reference to the
sales tax imposed would not alter its character. It may be noted that
additional tax is to be imposed only if the turnover of a dealer exceeds
Rs. 10 lakhs. It is in reality a tax on the aggregate of sales effected by
a dealer during a year. The additional tax, therefore, is an enhancement in the rate of the sales tax when the turnover of a dealer exceeds
Rs. 10 lakhs a year and it is a tax on the aggregate of the sales affected
by the dealer during the year. The decision in Ernakulam Radio
Company v. State of Kerala(11) which was ·affirmed by a Division
Bench of the Kerala High Court in Kiliker v. Sa~es Tax Officer(")
took that view. The same view was taken by the Andhra Pradesh High
Court in A. S. Ramachandra Rao v. State of Andhra Pradesh.(") This
is the correct view. Entry 54 in List II authorises the state legislature
to impose a tax on the sale or purchase of goods. So, the contention
of the appellants that the additional sales tax is not a tax on sales but
on the income of the dealer is without any basis.
As regards the second contention that the provisions of the Act
' are violative of the fundamental rights of the appellants under article
19(1)(f) and 19(1)(g), as the tax is upon the sale of goods and is
not shown to be confiscatory, it cannot be said that the provisions of
the Act impose any unreasonable restrictions upon the
appellants'
right to carry on trade. It is, no doubt, true that every tax imposes
some restriction upon the right to carry on a business; but it would
not follow that the imposition of the tax in question is an unreasonable
restriction upon the appellants' fundamental right to carry on trade.
Generally speaking, the amonnt or rate of a tax is a matter exclusively
within the legislative judgment and as Jong as a tax retains its avowed
character and does not confiscate property to the
State under the
guise of a tax, its reasonableness is outside· the judicial ken.
B
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But it wa~ contended that as the dealer is prohibited from passing
on the incidence of tax to the purchaser, the additional tax, unlike sales
tax, is a tax on income of the dealer which he must pay whether he
makes any profit or not and is, therefore, an unreasonable restriction
on his fundamental rights under article 19 ( 1 )(g).
G
The legal incidence of tax on sale of goods under the Tamil Nadu
General Sales Tax, 1959 falls squarely on the dealer. It may be that
he can add the tax to the-price of the goods sold and thus pass it on to
the purchaser. But it is not necessary that the dealer should be _enabled
to pass on the incidence of the tax on sale to the purchaser 1ll order
that it might be a tax on sales of goods.
H
(I) 18 S. T. C. 445, 449.
(2) 21 S. T. C. 253.
(3) 25 S. T. C.
133.
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s. KODAR v. KERALA (Mathew, !.)
!25
In J.K. Jute Mills Co. v. State of U.P.(11) this Court said, although
it is true that sales tax is, according to accepted notions, intended to
be passed on to the boyer, and provisions authorising and regulating
the collection of sales tax by the seller from the purchaser are a usual
feature of sales tax legislation, it is not an essential characteristic of a
sales tax that the seller must have the right to pass it on to the consumer, nor is the power of the legislature to impose a tax on sales
conditional on its making a provision for sellers to collect the tax from
the purchasers.
In Konduri Buchira;alingam v. State of Hyderabad,( 2 ) this Cciurt
said:
"It is then said that the sales tax is essentially an indirect
C
tax and therefore it cannot be demanded of the
appellant
without allowing him to recoup himself by collecting the
amount of the tax from the persons with whom he deals. This
Court has already decided in the case of Tal{l Iron and Steel
Co. Limited v. The State of Bihar [1958] 9 S.T.C. 267 that
in law a sales tax need not be an indirect tax and that a tax
can be a sales tax though the primary liability for it is put
D
upon a person without giving him any power to recoup the
amount of the tax payable, from any other party."
As we saic!, the additional tax is a tax upon sales of goods and not
upon the income of a dealer and so long as it is not made out that
the tax is confiscatory, it is not possible to accept the contention that
because the dealer is disabled from passing on the incidence of tax toE
the purchaser, the provisions of the Act impose an unreasonable restriction upon the fundamental rights of the appellants under article
19(1)(g) or 19(1)(f).
The last contention namely that the provisions of the Act impose
different rates of tax npon different dealers depending upon their turnover which in effect means that the rate of tax on the sale of goods.
F
would vary with the volume of the turnover of a dealer and are, therefore, violative of article 14 is also,without any basis. Classification of
dealers on the basis of their respective turnover for the purpose of
graded imposition so long as it is based on differential criteria relevant
to the legislative object to be achieved is not unconstitutional. A classification, depending upon the quantum of the turnover for the purpose
of exemption from tax has been upheld in several decided cases. By·
G
parity of reasoning, it can be said that a legislative classification making
the burden of the tax heavier in proportion to the increase in turnover
would be reasonable. The basis is that just as in taxes upon income or
upon transfers at death, so also in imposts upon business, the little
man, by reason of inferior capacity to pay, should bear a lighter load
of taxes, relatively as well as absolntely, than is borne by the big one.
The flat rate is thought to be Jess efficient than the graded one as an
H
instrument of social justice. The large dealer occupies a position of
economic superiority by reason of his greater volume of his business ..
(1) [1962] 2. S. C.R. I at 13.
(2) (19581 9 ~. T. C. 397.
•
.12 6
SUPREME COURT REPORTS
[1975] l s.c.R •
An?, to m~ke. his tax heavier, both absolutely and relatively; is
not
A
.arbitrary d1scnmmahon, but an attempt to proportion the payment to
.capacity to pay and thus to arrive in the end at a more genuine
equality. The economic wisdom of a tax is within the exclusive
province of legislature. The only question for the court to consider is
'Whether there is rationality in the belief of the legislature that capacity
.to pay the tax increases, by and large, with an increase of receipts.
;'Certain it is that mcrChants have faith in such a correspondence and act upon that faith. . . If experience did, not
teach that economic advantage goes along with larger sales,
there would be an end to the hot pursuit for wide and wider
markets.. . In brief, the.re is a relation of correspondence
between capacity to pay and the amount of business done.
Exceptions, of course, there are. The law builds upon the
probables, and shapes the measure of the tax accordingly ...
At the· very least, . an increase of gross sales carries with it
an increase of opportunity for profit, which supplies a rational
basis for division into classes, at all events when coupled with
evidence of a high degree of probability that the opportunity
will be fruitful".
(See the dissenting .iudgment( 1) of Justice Cardozo,
Justice Brandeis and Justice Stone).
The reasoning of the minority in that case appeals to us as more in
·Consonance with social justice in an egalitarian state than that of the
:majority.
As we said, a large dealer occupies a position of economic supe-
'Iiority by reason of. his volume of business. and to make the tax
heavier on him both absolutely and relatively is not arbitrary discrimination but an attempt to proportion the payment to capacity to pay
and thus arrive in the• end at a more genuine equality. The capa~ity of
a dealer, in particular circumstances, to pay. tax is not an irrelevant
·factor in fixing the rate of tax and one index of capacity is the quantum
of turnover. The argument that while a dealer beyond certain limit is
obliged to pay higher tax, when others bear a less tax, and it is consequently discriminatory, really misses the point namely that the former
kind of dealers are in a position of economic superiority by reason of
their volume of business and form a class by themselves. They cannot
be treated as on a par with comparatively small dealers. An attempt
to proportion the payment to capacity to pay and thus bring about a
real and factual equality- cannot be ruled out as irrelevant in levy of tax
on the sale or purchase of goods. The object of a tax is not only to
·raise revenue but also to regulate the economic life of the society.
We dismiss the appeals and writ petition with costs. One set of
·hearing fee.
P.B.R.
Appeals and petitions
dismissed.
,
(1) Ste.wart Dry Goods Co. v. Lewis, 294 U. S. 550.
ll
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