SHAM LAL AND SONS Vs. STATE

JUDGEMENT

(1.) ENTRY No. 71 of Schedule B of S. R. O. No. 80 dated March 12. 1982, issued under sub-section (1) of section 4 of the Jammu and Kashmir General Sales Tax Act, 1962, hereinafter called "the Act", is sought to be quashed on the ground of being ultra vires of the provisions of articles 14, 301 and 304 (a) of the Constitution of India in so far as it gives exemption to locally purchased second-hand clothes and imposes tax on old clothes brought from outside the State. It is further prayed that the imposition of tax at the rate of 8 per cent on second-hand clothes be held ultra vires and demand created by respondent No. 2 directing the payment of the tax imposed under the aforesaid entry be quashed.

(2.) THE petitioner who is carrying on the business of second-hand clothes imported from other States was imposed tax by the respondent No. 2 vide his order dated August 28, 1986, who issued demand notice for Rs. 7,641. 82 for the accounting period 1984-85. It is alleged that the second-hand clothes were exempted from the sales tax in the State up to March 31, 1982, vide entry 62 of Schedule II of S. R. O. No. 157 dated May 15, 1965. However, vide the entry impugned the second-hand clothes imported from outside the State were subjected to tax but such clothes which were not imported from outside the State were exempted from payment of tax. It is submitted that the impugned entry puts restriction on the free-flow of trade, commerce and intercourse in contravention of the provisions of article 301 of the Federal Constitution. The imposition of tax on second-hand clothes imported from outside the State is stated to be discriminatory and also violative of articles 14 and 304 (a) of the Constitution, inasmuch as by the impugned entry the burden of sales tax and surcharge is imposed only on second-hand clothes imported from outside the State and exempting such clothes locally purchased.

(3.) NEITHER any counter-affidavit has been filed nor any one appeared for the respondents. I have heard the learned counsel for the petitioner and perused the record.