SECOND GIFT TAX OFFICER, MANGALORE, ETC. versus D. H. NAZARETH ETC.

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SECOND GIFT TAX OFFICER, MANGALORE, ETC.

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D. H. NAZARETH ETC. April 2, 1970

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[M. H!DAYATULLAH, C.J.,

J. C. SHAH, A. N. GROVER,

A. N. RAY AND I. D. DUA, JJ.)

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Constitution of India, 1950, Art. 248, Schedule VII, Union List, Entry 97 and State List, Entries 18 and 49-Gift Tax Act (18 of 1958)-Enacted by Parlian1ent under residuGr,v power--Competence of Parliament.

Gift tax was levied under the Gift Tax Act, 1958, on gifts, of coffee plantations, paddy and other agricultural lands and buildings, made by the respondents. The Gift Tax Act was enacted by Parliament but there is no entry in the Union or Concurrent Lists mentioning such a tax. The High Court held that Parliament was not competent to enact a law impas ing a gift tax on lands and buildings, because, entries 18 and 49 of the State List reserved the power to State Legislatures.

On appeal to this Court. HELD : The Constitution divides the topics of legislation into three broad categories : (a) en fries enabling laws to be made, (b) entries en abling taxes to be imposed, and ( c) entries enabling fees and stamp duties to be collected. The taxes are separately menuoned and contain the whole of the power of taxation, except entry 97 of the Union List, under which, Parliament has exclusive power to make a law in respect of any matter not enumerated in the Concurrent or State Lists and the power includes the power of making a law imposing a tax not mentioned in either of the Lists. [ 199 G-H]

Entry 18 of the State List dealin~ with 'land', though very wide, does not therefore confer any power of taxatiou and cannot authorise a tax not expressly mentioned. [ 199 HJ

Entry 49 of the State List contemplates a t.ax directly levied by reason of the general ownership of lands and buildings. But the pith and subst ance of the Gift Tax Act, is to place the tax on the gift of property which It is not a tax imposed directly upon may include land and buildings. lands and buildi~gs but is a tax upon the value of the total gifts made in a year which is above the exempted limit. The lands and buildings are valued only as a measure of the value of the gift and what is taxed is the gift. A gift tax is thus not a tax on lands and buildings as such but is a levy upon a particular use. namely, the transmission of title by gift. [200 A-El

There being no· other entry in the State List which might cover a gift tax, the residuary powers of Parliament under Art. 248, and entry 97 of the Union List. could be exe,cised by Parliament. to enact the law. [200 E-F]

Sudhir Chandra Nawn v. Wealth Tax Officer, CGlcutta & Ors. (1968)

69 l.T.R. 897 (S.C.) followed.

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S. Dhandapani v. Addi. Gift Tax Officer, Cuddalore, (1963) 49 J.T.R. 712, ShyGm Sunder v. Gift Tax Officer, A.LR. 1967 All. 19, Jupadi Sesha ratnam v. Gift Tax Officer, Palacole, ( 1960) 38 J.T.R. 93 and Joseph v. Gift Tax Officer, (1964) 45 J.T.R. 66, approYed.

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SUPREME COURT REPORTS

[1971] l S.C.R.

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 664 to

669 of 1967.

· Appeals from the judgment and order dated March 22, 1962, July 23, 1962, July 24, 1962, July 12, 1963 and August 14, 1963 in Writ Petitions Nos. 1077 of 1959, 19 and 739 of 1960, 157 of 1961, 970 of 1962 and 594 of 1963.

Jagadish Swarup, Solicitor-General, S. K. Aiyar and R. N. Sach

they, for the appellants (in all the appeals).

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S. V. Gupte, A. K. Varma, J.B. Dadachanji, 0. C. Mathur and Ravinde:· Narain, for the respondent (in C. A. No!f. 664 and 668 Of 1967).

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0. P. Rana, for the intervener for the State of U.P.

M. R. K. Pillai, for the intervener for the State of Kerala.

B. Sen, Santosh Chatterjee and G. S. Chatterjee for Sukumar

Bose, for the State of West Bengal.

S. Govind Swaminathan, Advocate-General, Tamil Nadu, A. V. Rangam and M. Subramaniam, for the State of Tamil Nadu.

Lal Narayan Sinha, Advocate-General, Bihar, D. P. Singh nad

V. J. Francis, for the intervener for the State of Bihar.

K. A. Chitaley, Advocate-General, State of Madhya Pradesh, /. N. Shr<off, for the intervener for the State of

M.N. Shroff and Madhya Pradesh.

E. S. Venkataramiah, Adl'ocate-General, Mysore and· S. P.

Nayar, for the intervener for the State of Mysore.

J. C. Medhi, Advocate-General, Assam and Naunit Lal, for the ·

intervener for the State of Assam.

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The Judgment of the Court was delivered by

Hidayatullah, C.J. These six appeals by certificate under Art. G

.. 132(1) of the Constitution are filed against

the decision of the High Court of Mysore, declaring that Parliament had no power to legislate with respect to taxes on. gift of lands and buildings. The High Court passed a detailed judgment on two of the petitions by which the competence of Parliament was challenged and followed its own decision in the other four _g)lSes. the facts of the six petitionsjn die High Court. As illustrative of the facts involved we may mention on W.P. No. 1077 of 1959. In that case a certain D. H. Nazareth, owner of a coffee. plantation,

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GIFT TAX OFFICER v. NAZARETH (Hidaya:ut/ah, C.J.)

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made a gift by registered deed, January 22, 1958, of a coffee plan tation and other 12.roperties in favour of his four sons. The market value of the prope<ty was Rs. 3,74,080 and' the coffee plantation accounted for Rs. 3,24,700. Gift tax of Rs. 35,612/· was de manded. If the coffee jlantation was left out of consideration the tax was liable to be reduced by Rs. 34,036. The authority to charge gift tax on the gift of the coffee plantation was challenged and the right of Parliament to impose a gift tax on lands and build ings questioned. In some of th~ other cases agricultural or paddy lands or buildings wer~ the subjects of gifts and they were simi larly taxed and the tax questioned.

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The High Court held that entry 49 of the State List read with entry 18 of the same list reserved the power to tax lands and build· ings to the Legislature of the States und Parliament could not, therefore, use the residuary power conferred by entry 97 oi the Union List. This decision is challenged before us.

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The Gift Tax A~t was passed in 1958 and subjected gifts made in the year ending March 31, 1958 to tax. The Act contained the nual exempted limits and other exemptions. We need not concern ourselves with them here. We are only concerned with the validity of parliamentary legislation imposing gift tax at all.

To consider the obj_ection to the. Gift Tax Act which was sus tained by the High Court a few general principles may be borne in mind. Under Art. 245 Parliament makes laws for the whole or any part of the territory of India and the Legislatures of the States for the whole or part of their respective States. The subject matter of laws are set out in three lists in the Seventh Schedule. List I (usually referred to as the Union List) enumerates topics of legislation in respect to which Parliament has exclusive power tc make laws and List II (usually referred to as the State List) enu merates topics of legislation in respect to which the State Legisla tures have exclusive power to make laws. · List III (usually referred to as the Concurrent List) contains topics in respect to which both Parliament and Legislature of a State have power to make laws. Inconsistency between laws made by Parliament and those made by the Legislatures of the State, both acting under the Concurrent List, is resolved by making Parliamentary law to prevail over the law made by the State Legislature. So long as the Parliamentary law continues, the State law remains inoperative but becomes opera tive _once the Parliamentary law, throwing it into shadow, is re moved. Then ·there is the declaration in Art. 248 of the residuary powers of legislation. Parliame_nt has exclusive power to make any law in respect to any 111atter not enumerated in the Concur rent List or State List and this power includes the power of mak ing any law imposill& a tax •ot 111entioned in either of those lists.

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For this purpose, and to avoid any doubts, an entry has also been A included in the Union List to the following effect :

"97. Any other matter not enumerated in List II or List III including any tax not mentioned in either of those lists".

It will, therefore, be seen that the soyereignty of Parliament and the Legislatures is a sovereignty of enumerated entries, but within the ambit of an entry, the exercise of power is as plenary as any legislature can possess, subject, of course, to the limitations arising from the Funda~ental .Rights. The entries themselves do not follow any logical classification or dichotomy. As was said in State of Rajasthan v. S. Chawla and another(') the entries in the list must be regarded as enumeratio simplex of broad categorie~. Since they are likely to overlap occasionally, it is usual to exa m~e the pith and substance of. legislation with a view to determin ing to which entry they can be substantially related, a slight con nection with· another entry in another list notwithstanding. There fore, to find out whether a piece of legislation falls within any entry its true nature and character must be in respect to that particular entry. The entries must of course receive a large and liberal in terpretation because the few words of the entry are intended to confer vast and plenary _powers. If, however, no entry in any of the three lists covers it, then it must be regarded as a matter not enumerated in any of the three lists. Then it belongs exclusively to Parliament under entry 97 of the Union Li.st as a topic of legislation.

The Gift Tax Act was enacted by Parliament and it is admit ted that no entry in the Union List or the Concurrent List men· tions such a tax. Therefore, Parliament purported to use its ); powers derived from entry 97 of the Union List read with Art. 248 • of the Constitution. This power admittedly could not be i:lvokee1 if the subject of taxes on gifts could be said to be comprehended in any entry in the State List. The High Court has accepted the contention of the tax-payers that it is so comprehended in entries 18 arul 49 of the State List. Those entries read :

"18. Land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization."

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"49. Taxes on lands and buildings."

The argument is that by entry 18, 'land' of all description is · made subject to legislation in the States and by entry 49 taxes of

(1) [1959] Supp. I S.C.R. 904.

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GIFT TAX OFFICER v. NAZARETH ({iidayatullah, C.J.)

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whatever description on lands in that large sense and buildings generally fall also in the jurisdiction of the State. Reference is made to entries 45, 46, 4 7 and 48 of the State List in which cer tain taxes are to be imposed on land and agricultural land or income from agriculture exclusively by the States in contrast with entries 82, 86, 87 and 88 where the taxes are imposed on proper It ties other than agricultural land or income from agriculture. is submitted, therefore, that the general scheme of division of taxing and other entries by which land particµlarly agricultural land and income therefrom is reserved for the States shows that taxes on lands and buildings read liberally must also cover taxes in respect of gifts of land particul;irly agricultural land and build If the entry so read can be reasonably said to include the ings. tax, then there can be no question of recourse to the residuary powers of Parliament.

The matter is not res integra and however attractive the argu ment, it cannot be accepted. Many High Courts in India have considered this matter before the Supreme Court decided it. Th.e Mysore view was not followed in S. Dhandapan,i v. Addi. Gift Tax Officer, Cudda/ore(') (Madras High Court); Shyam Sunder v. Gift Tax Officer(') (disapproved on another point in the Sup reme Court). A contrary view was earlier also expressed m Jupadi Sesharatnam v. Gift Tax Officer, Pa/acole( 3 ) (Andhra Pradesh High Court) and Joseph v. Gift Tax Officer(') (Kerala High In fact the judgment under appeal stands alone. Court).

The subject of entry 49 of the State List in relation to imposi tion of Wealth Tax came up for consideration in Sudhir Chandra Nawn v. Wealth Tax Officer, Calcutta & ors.(') and the view of the High Court on the construction of this entry was affirmed. Although the judgment under appeal was not referred to ex pressly the result is that it must be taken to be impliedly over In view of the decision of this ~ourt it is not necessary ruled. to deal with the matter except briefly.

The Constitution divides the topics of legislation into three broad categories: (a) entries enabling laws to be made, (b) entries en1bling taxes to be imposed, and (c) entries enabling fees and stamp duties to be collected. It is not intended that every entry gives a right to levy a tax. The taxes are separately mentioned and in fact contain the whole 'of the power of taxation. Unless a !llX is specifically mentioned it cannot be imposed except by Parliament in the exercise of its residuary powers already mentioned., There fore. entry 18 of the State List does not confer additional power

(I) (1963) 49 l.T.R. 712. (3) (1960) 38 tL.R. 93. (5) (1968) 69 T.T.R. 897 (S.Cl.

'(:il A.LR. 1967 All. 19. l.L.R. 66. (4) (1964) 45

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SUPREME COURT REPORTS

[1971 j l S.C.R,

of taxation. At the most fees can be levied in respect of the items A mentioned in that entry, vide entry 66 of the same list. Nor is it · possible to read a clear cut division of agricultu[al land in favour of the States although the intention is ·to put land in· most of its aspects in the State List. But however wide that entry, it cannot still authorise a tax not expressly mentioned. Therefore, either th'j\ pith and substance of the Gift Tax Act falls within entry 49 ofll B State List or it does not. If it does, then Parliament will have no J[f it does power to levy the tax even under the residuary powers. not, then Parli~ent must undoubtedly possess that power under Art. 248 and entry 97 9~ the Union List.

· the gift of property which may include land and buildings.

The pith and substance of Gift Tax Act is to place the tax on It is not a tax imposed directly upon lnnds and buildings but. is a tax upon the value of the total gifts made in n yenr which is above ,tl:ie exempted limit. There is no tax upon lands or buildings as Indeed the lands and buildings are valued to 'units of taxation. find out the total amount of the gift nnd what is taxed is the gift. is only the measure of the The value of the lands and buildings value of the gift. A gift-tax is thus not a tax on lands and build ings as such (which is a tax resting upon general ownership of lands and buildings) but is a levy upon a particular use, which is transmission of title by gift. The two are not the same thing and the incidence of. the tax is not the same. Since entry 49 of the State List contemplates a. tax directly levied by reason of the gene ral ownership of lands and buildings, it cannot include the gift tax as levied by Parliament. There being no other entry which covers a gift tax, the r~siduary powers of Parliament could be exercised to enact a law. The appeals must, therefore, b1~ allowed but there shall be no order about costs throughout. The appeal 666/67 however abates as the sole respondent died.

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V.P.S.

Appeals allowed.