Court : Supreme Court of India
..... of inter state trade and commerce or sales outside the state and sales in the course of import into, or export out of the territory of india are not taxed, there is nothing to prevent the state legislature while mak ing a law for the levy of a surcharge under entry 54 of list ii of the seventh schedule to take into account the total turnover of the dealer within the state and provide, as has been done by sub section (1) of section 5 of the act, that if the gross turnover of such dealer exceeds rs 5 lakhs in a year, he shall ..... as per sub section (3) of section 83 of the finance act, 2010, the clean energy cess was levied and collected for the purposes of financing and promoting clean energy initiatives, funding research in the area of clean energy or for any other purpose relating thereto whereas states compensation cess is collected to provide for compensation to the states for the loss of revenue arising on account of implementation of the goods and services tax .66. ..... the writ petitioner suffered cess of rs.400 per ton on the coal and under the impugned legislation the union is again levying and collecting cess at the rate of rs.400 per ton on the stock lying with the petitioner as on 30.06.2017 just on eve of the day when all legislation related to gst including 10 impugned legislation was introduced, whereas on the same stock of coal, cess was already levied and collected under the provisions of chapter vii of finance act, 2010. .....
Tag this Judgment!Court : Mumbai
..... following the decision of the delhi high court, the finance act, 2010 substituted the provisions of sub-clause (zzzz) with effect from 1 june 2007. ..... the submission proceeds on the basis that the essence of a service tax is the rendering of a service or a value addition and in the case of renting of immovable property, no service is involved; (ii) the legislative competence of parliament is questioned on the ground that the tax is on renting of immovable property which, according to the petitioners, would fall within the legislative competence of the states under entry 49 of list ii of the seventh schedule to the constitution; (iii) the levy of a service tax on renting of immovable property with retrospective effect from 1 june 2007 has been questioned. ..... the delhi high court did not decide the constitutional challenge for, in the course of the concluding paragraph of the judgment, the division bench noted that it was not examining the plea in challenge to the legislative competence of parliament in the context of entry 49 of list ii of the seventh schedule to the constitution. 3. ..... we are not inclined to grant the prayer for the reason that the scope and ambit of entry 49 of list ii of the seventh schedule and of the residuary power of legislation of parliament have been considered by several judgments of the constitution bench of the supreme court and this court has followed the law as expounded therein. .....
Tag this Judgment!Court : Chennai
..... with section 65(90-a) of the finance act, 1994, as amended by the finance act, 2010, as null and void and ultra vires and violative of entry 49, list-ii, seventh schedule, articles 14, 19 and 246(3) of the constitution of india, (ii) section 76(a)(6)(h) and section 77 of the finance act, 2010 as null and void and ultra vires the constitution of india insofar as the petitioners are concerned; and (iii) the notification no.24/2007 dated 22.05.2007 and circular 98/1/2008-st dated 04.01.2008 as revived by the finance act, 2010, issued by the firs.respondent, as illegal, null and void and ultra vires the provisions of the finance act, 1994, as amended subsequently ..... , insofar as the petitioners are .....
Tag this Judgment!Court : Karnataka
..... (these writ petitions are filed under articles 226 and 227 of the constitution of india praying to declare that the provisions of finance act, 1994 as amended by finance act, 2010 introducing an explanation to section 65(105) (zzq) and 65(105) (zzzh) and a new entry(zzzzu) in section 65 (105) of the finance act 1994 is unconstitutional void and ultra vires and etc. ..... hence the impugned provisions are unconstitutional as parliament lacks legislative competence to tax the services referred to therein, as the tax, in substance, is a tax on transfer of lands and buildings and therefore, the subject matter will fall within the ambit of entry 49 of list ii (state list) of the seventh schedule of the constitution of india. ..... " (emphasis supplied) in my opinion, as stated above, the subject matter relating to the impugned provisions will not fall within the ambit of entry 49 of list ii of the seventh schedule of the constitution. ..... " (emphasis supplied) in the light of the above observations of the supreme court as to the scope of entry 49, a tax on a particular activity in connection with land (in the present case it is construction) cannot be said to be a tax directly on land to fall within the ambit of entry 49 of list ii of the seventh schedule of the constitution. .....
Tag this Judgment!Court : Delhi
..... for the purpose of better appreciation, the provision that existed prior to the finance act, 2010 and post amendment by the finance act, 2010 are produced below in a tabular form: prior to finance act, 2010 post amendment by finance act, 2010 "section 65 (90a) "renting of "section 65(90a) "renting of immovable property" includes immovable property" includes renting, letting, leasing, licensing renting, letting, leasing, licensing or other similar arrangements of or other similar arrangements of immovable property for use in the immovable property for use in the course or furtherance of business course or furtherance of business or commerce ..... is his further submission that the activity which is sought to be taxed under section 65(105)(zzzz) is allowing/permitting the usage of immovable property in the course and furtherance of business which is neither covered under the transfer of property act nor under the indian easements act and by no means is a tax on land and building to come within the ambit and sweep of entry 49 of list ii of the seventh schedule of the constitution. ..... the principal contention that was canvassed before the apex court was that the subject matter of the act being a tax on building is a tax on the capital value of the asset of an individual or a company and falls within the scope of entry 86 of list i of the seventh schedule of the constitution and not under entry 49 of list ii and, therefore, it travels beyond the legislative competence of the state .....
Tag this Judgment!Court : Chennai
..... w.p.no.1676 of 2013 is filed under article 226 of constitution of india praying to issue a writ of declaration, or any other appropriate writ, order or direction under article 226 of the constitution of india declaring that section 65(105)(zzzzt) of the finance act, 1994 as amended by finance act, 2010 unconstitutional and ultra vires, article 246 of the constitution of india read with entry 54 of list ii of schedule vii and article 14 of the constitution of india. ..... after analysing the object of enacting the finance act and interpreting the taxing entries in the seventh schedule to the constitution, it was held as follows: ..... 2138 of 2012 is filed under article 226 of constitution of india praying to issue a writ of declaration declaring section 65(105)(zzzzt) of the finance act, 1994 as ultra vires entry 54 of list ii of the seventh schedule to and article 14, 19(1)(g) and 245 of the constitution of india. ..... 5777 of 2012 is filed under article 226 of constitution of india praying to issue a writ of declaration declaring section 65(105)(zzzzt) of the finance act, 1994 as ultra vires entry 54 of list ii of the seventh schedule to and article 14, 19(1)(g) and 245 of the constitution of india w.p.no.5900 of 2012 is filed under article 226 of constitution of india praying to issue a writ of declaration declaring section 65(105)(zzzzt) of the finance act, 1994 as ultra vires entry 54 of list ii of the seventh schedule to and article 14, 19(1)(g) and 245 of the constitution of india. .....
Tag this Judgment!Court : Supreme Court of India
..... in the circumstances, we observe that the finance act, 1994 is relatable to entry 97 of list i of the seventh schedule of the constitution. ..... 3.4 a letter dated 07.07.2009 was issued to the appellant herein by the office of the superintendent of central excise, gangtok range, gangtok, government of india requesting the appellant to submit an application form st-1 seeking service tax registration under the category "business auxiliary service" as the service rendered by the appellant came within the ambit of "business auxiliary service" in terms of the explanation to section 65(19)(ii) of the finance act, 2008 and therefore, the appellant was liable to pay service tax. ..... vide impugned judgment dated 03.07.2010, the high court of sikkim dismissed the writ petition filed by the appellant herein. ..... these appeals are filed by the assessees against the judgments of the high courts of sikkim and kerala dated page 1 of 2503.07.2010 and 19.08.2011 respectively.3. in k. ..... however, it is not necessary to extract the amended entry as these appeals pertain to the period prior to 01.07.2010. ..... however, these cases pertain to the period prior to 01.07.2010. ..... no doubt the explanation was omitted with effect from 01.07.2010. .....
Tag this Judgment!Court : Kolkata
..... the issues that have arisen in this writ petition can be summarised as follows:(i) is chapter xii-h of the income tax act, 1961 or any part thereof unconstitutional being opposed to articles 14 and 246(1) read with entry 82, list i of the seventh schedule to the constitution of india ?. ..... :- the petitioners have assailed chapter xii-h of the income tax act, 1961 as unconstitutional being opposed by article 14 and 246(1) read with entry 82 in list i of the seventh schedule to the constitution of india. ..... learned additional advocate general appearing in support of the writ petition has contended at the hearing of the writ petition that, the impugned chapter if read down in the manner suggested, then, the entire chapter can pass the test of constitutionality. ..... adv.general ms.anupa banerjee, advocate mr.paritosh sinha, advocate mr.amitava mitra, advocate mr.aritra chakraborty, advocate for the respondents : md.nizamuddin, advocate mr.r.k.sinha, advocate hearing concluded on : august 7, 2017 judgment on : september 1, 2017 debangsu basak, j. ..... he has referred to the budget speech of the hon ble finance minister while introducing chapter xii-h to the act of 1961. ..... the chapter was, thereafter, deleted subsequently in the year 2009-2010. ..... he has also relied upon (2010) 326 income tax reports page 642 (sc) (ajmera housing corporation v. .....
Tag this Judgment!Court : Delhi
..... the petitioners are aggrieved by the levy of service tax on services 'in relation to construction of complex' as defined under section 65 (105)(zzzh) of the finance act, 1994 (hereafter 'the act') and inter alia impugn the explanation to section 65(105)(zzzh) of the act (hereafter the impugned explanation') introduced by virtue of finance act 2010 as being ultra vires of the constitution of india. ..... dhillon: (1972) 83 itr 582(sc), a constitution bench of the supreme court applied the doctrine of pith and substance while in considering the question whether the levy of wealth tax act on immovable property would retrench upon the legislative field reserved for the stakes under entry 49 of list ii of the seventh schedule of the constitution of india. 32. ..... mr puneet aggarwal, the learned counsel appearing for the petitioners contended that the entries relating to taxation in list i and list ii of the seventh schedule to the constitution of india were mutually exclusive and the parliament did not have the power to levy tax on immovable property; thus, the levy of service tax on agreements for purchase of flats was beyond the legislative competence of the parliament. 6. ..... at the material time none of the specific entries under any of the lists of the seventh schedule to the constitution of india contemplated the levy of service tax; thus, the levy of service tax could be related only to the residuary entry in the union list-entry 97 of the list-i of the seventh schedule. .....
Tag this Judgment!Court : Delhi
..... article 246(1) of the constitution specifies that parliament has exclusive powers to make laws with respect to any of the matters enumerated in list i in the seventh schedule to the constitution. ..... union of india, (2010) 19 str321(ap) had examined the three provisions which are subject matter of the present writ petition including 2007 rules enacted under section 94 of the finance act. ..... the court also noticed that the goods which are transferred in the course of execution of a works contract may be declared goods ; they may be goods which are liable to be taxed under the central sales tax act, 1956; the goods so transferred may also be taxable under different schedules to the kerala act which prescribe different rates. ..... (ii) service tax is applicable only in respect of service element and the central government does not have any power under the residual entry to impose tax on entries under list ii of the seventh schedule of the constitution. ..... we have no doubt that the state legislatures lack legislative power to levy tax on the transfer of immovable property under entry 54 of list ii of the page 26 of 51 seventh schedule. .....
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