MYSORE KIRLOSKAR LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) AS the petitioners in all these cases have challenged certain provisions of the IT Act of 1961 (Central Act 43 of 1961) ("the Act"), on the grounds that are common, we propose to dispose of them by a common order.

(2.) THE first petitioner in each of Writ Petitions Nos. 7399, 8785 of 1984, 1237, 1238, 1269 and 1623 of 1985, who are the principal petitioners, are either public or private limited companies incorporated under the Companies Act, engaged in carrying on one or the other businesses detailed in their respective writ petitions. THE second petitioner in each of them are either directors or shareholders of the respective companies, who have joined to avoid technical objections based on the challenge to Art. 19 of the Constitution. We will, therefore, treat the first petitioner in each of them as the petitioner. THE other petitioners in all other cases are partnership firms engaged in carrying on one or the other businesses detailed in their respective petitions. All the petitioners are assessees under the Act on the file of the concerned ITO of the area. THE petitioners have challenged the validity of ss. 37(3A), 40A(8), (9), (10) and 43B of the Act either separately or cumulatively on three substantial grounds and they are--(i) the provisions do not relate to entry No. 82 of List I of the Seventh Schedule to the Constitution and were beyond the legislative competence of the Union Parliament; (ii) that the provisions suffer from the vice of impermissible classification or were irrational, unconscionable, arbitrary and were violative of Art. 14 of the Constitution; and (iii) that the provisions unreasonably interfere with their freedom of trade and business guaranteed to them under Art. 19(1)(g) of the Constitution and were not saved by Sub-art. (6) of Art. 19 of the Constitution. THE respondents have resisted these writ petitions.

(3.) THE general rules of interpretation of entries found in the Seventh Schedule to the Constitution are now well settled by the Supreme Court. THE various entries in the three lists are not powers of legislation but fields of legislation. THE power to legislate is given by Arts. 245 and 246 and other articles of the Constitution. THE entries in the lists are merely legislative heads and are of an enabling character. THE language of the entries should be given widest scope of which their meaning is clearly capable, because they set up a machinery of Government. Each general word should, accordingly, be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be comprehended in it. In interpreting an entry, it would not be reasonable to import any limitation by comparing or contrasting that entry with any other entry in the same list. THE entries in the different lists should be read together without giving a narrow meaning to any of them. THE entries in the legislative lists have been divided into two groups, one relating to the power of taxation and the other relating to the power of general legislation relating to specific subjects. Taxation is considered as a distinct matter for purpose of legislative competence. THE residuary entry No. 97 of the Union List enables Parliament to legislate on matters that are not covered by entries Nos. 1 to 96 as also impose taxes on those matters [vide Union of India vs. Harbhajan Singh Dhillon (1972) 83 ITR 582 (SC)]. As pointed out by Hidayatullah J. (as his Lordship then was) in Hari Krishna Bhargava vs. Union of India (1966) 59 ITR 243 (SC), we should not resort to the residuary entry without first ascertaining whether the provisions fall within a specific entry or not.