SITANIA ENTERPRISERS Vs. STATE OF ORISSA

JUDGEMENT

(1.) EACH of these petitions under article 226 of the Constitution raises the same question regarding constitutional validity of section 5-A of the Orissa Sales Tax Act, 1947 (in short, "the Act") as amended by the Orissa Act 11 of 1990, operative from July 1, 1990, which provides for levy of surcharge at the rate of ten per centum of the total amount of tax payable by a dealer whose gross turnover during any year exceeds rupees ten lakhs.

(2.) BEFORE we grapple with the contentions raised, it is necessary to refer to some of the relevant provisions of the Act. "gross turnover" is defined in section 2 (dd) and reads as follows :

(3.) CHALLENGE to, the validity of surcharge and additional sales tax provisions is not a new phenomenon. It has travelled through the corridors of many courts including that of the apex Court in many cases. At the threshold we pointed out to the learned counsel for the petitioners that in several decisions the apex Court has taken care of bulk of their armory and constitutional attack. But it was urged that the apex Court did not have the occasion to consider the points at issue, being canvassed by them. We have glossed through the legal embroidery which constitutes bulk of the armoury. We find no area untouched by the apex Court which the petitioners describe as virgin ground. Nevertheless in view of large number of petitions filed, we permitted the learned counsel to argue at length to find out whether they can beacon any light. Rummaging through the points urged, we find that they relate to the oft-submitted pleas of lack of legislative competency, encroachment upon the field of operation of the Union Legislature, confiscatory nature of the levy, discrimination, and unreasonable restriction affecting fundamental right to carry on business and multiple point levy of tax.