JAI SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) BY this petition under Art. 226 of the Constitution, the petitioner has prayed that the rate of 10 per cent sales-tax on country liquor, fixed by notification dated March 8, 1969 (Ex. 4) issued by the Government of Rajasthan in exercise of the powers conferred upon it by sec. 5 of the Rajasthan Sales Tax Act, 1954 (hereinafter referred to as "the Act") may be declared as null and void. It has also been prayed that Rs. 7. 124/45 recovered from the petitioner by the State of Rajasthan as sales-tax on the basis of the aforesaid Notification be ordered to be refunded.

(2.) THE petitioner was granted licence-for exclusive privilege to sell, by retail, country liquor under rule 67-1, Chapter V1i-8 of the Rajasthan Excise Rules, 1956, for the year 1969-70, at village Rohit in district Pali on condition of payment of a lump sum of Rs. 45,000/-, to be paid in twelve equal monthly instalments. It is alleged in paragraph 3 of the writ petition that the instalments are realised by the Excise Department as component price of the liquor sold from the ware-house to the petitioner for retail sale. It is further alleged in paragraph 5 of the writ petition that the sales-tax is being charged from the petitioner on total price (issue price) of the liquor which includes the cost-price and also the licence-fee, which is adjusted ultimately towards the excise duty on the liquor. THE petitioner has challenged the levy of sales-tax under Notification Ex. 4, referred to above, on the following three grounds: - (i) that sales-tax can be charged only on the cost of the country liquor, but not on the licence-fee paid for the exclusive privilege of selling country liquor in a particular area; (ii) that sales-tax is leviable oil the first point under rule 15 of the Rajasthan Sales-tax Rules, 1955. Consequently, the petitioner, who purchases country liquor from the State Government is not liable to pay sales-tax inasmuch as the first point of sale is by the Ganganagar Distillary to the State Government; and (iii) that the Amending Act No. 13 of 1964, whereby exemption from levy of sales-tax on country liquor, granted in the original Act, was removed, did not receive the assent of the President.

(3.) THIS brings us to the third and the last objection. It may be pointed out that this objection has not been made a ground of attack in the writ petition. On the other hand, the objection raised in this connection is that the Notification issued by the State Government authorising the levy of sales-tax has not received the assent of the President. Learned counsel for the petitioner, however, submitted that the word '-Notification" has been mentioned inadvertantly otherwise what was intended to be urged was that the Amending Act 13 of 1964, whereby the exemption granted by the original Act from levy of sales-tax on liquor, was removed, is bad on account of not having been assented to by the President. In our opinion, the petitioner is not entitled to raise this objection when he has not taken it in the writ petition nor has amended the writ petition by inserting this ground, even though eight years have passed since the writ petition was filed. However, we may observe that the point has no substance. It is true that the original Act received the assent of the President, but at the same time there is no denying the fact that the tax in question falls under Item 54 of List II of State List, Schedule VII appended to the Constitution, which reads as under : - "54. Taxes on the sale or purchase of goods other than newspapers, subject to the provisions of Entry 93-A of List I. " Article 200 of the Constitution, provides, inter alia, that where a Bill has been passed by the Legislative Assembly of a State, it shall be presented to the Governor and the Governor shall declare either that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for consideration of the President. In the present case, the Amending Act was assented to by the Governor as he did not think it proper to reserve the Bill for consideration of the President. Thus, the Amending Act did not require the assent of the President as provided under Art. 200 of the Constitution.