HARBANS LAL Vs. STATE OF HARYANA

JUDGEMENT

(1.) THIS judgment shall dispose of Civil Writ Petitions Nos. 11860, 11861 of 1988, 148, 12953, 13401, 14340 and 15523 of 1989. In these petitions question of law raised is regarding the constitutional validity of Sub-clause (iv) of Section 2 (j) and (l) of the Haryana General Sales Tax Act, 1973 (as amended by Haryana Act 11 of 1984) in so far as it provides for levying of sales tax on "transfer of the right to use any goods for any purpose".

(2.) PETITIONERS in these writ petitions are doing the business of giving tents, kanats, crockery, utensils, furniture, shuttering to the builders/ contractors for the purpose of construction of buildings, supply of gas in cylinders and cylinders on returnable basis and giving buses on hire belonging to the petitioners to the third parties. The petitions have been filed either on the issuance of the notices by the sales tax authorities for levy of the proposed tax or where initial assessments have been framed by the assessing authority and the petitioners instead of challenging the assessment orders in appeal, have filed the writ petitions challenging the constitutional validity of the 46th Amendment of the Constitution of India, which came into force with effect from 2nd February, 1983, coupled with the challenge to the constitutional validity of Sub-clause (iv) of Section 2 (j) and (1) of the Haryana General Sales Tax Act (hereinafter referred to as "the HGST Act, 1973" ). We propose to deal with the legality and the constitutional validity of the various provisions of the HGST Act, 1973 and the 46th Amendment of the Constitution before dealing with the facts of each individual case separately.

(3.) A brief history of the relevant constitutional and statutory provisions having a bearing on the amendment of the Haryana General Sales Tax Act in the year 1984 (by Haryana Act 11 of 1984), has to be set out at this stage to appreciate the contentions of the parties. Prior to the commencement of the Constitution of India, the power to levy sales tax had been conferred on the Provincial Legislatures by entry 48 of List II of the Seventh Schedule to the Government of India Act, 1935. After the independence, the powers to levy sales tax was conferred on the State Legislature by the Constitution by entry 54 of List II of the Seventh Schedule to the Constitution of India which as originally enacted reads thus :