K.M. Joseph Binoy (No. 1) vs Union of India (UOI) and Others

K.S. Paripoornan, J.—The petitioner in Original Petition No. 3709 of 1990, is the appellant in this writ appeal. He is an abkari contractor and an assesses under the Income Tax Act, 1961. In the original petition, the attack was against section 44AC of the Income Tax Act, 1961. The petitioner contended that the said provision of law is ultra vires the Constitution. The provision was challenged as beyond legislative competence and also on the ground that it is discriminatory. There is also a prayer that this court may be pleased to reconsider its earlier decisions upholding the aforesaid provision in the Act. The decision aforesaid is reported in P. Kunhammed Kutty Haji and Others Vs. Union of India (UOI) and Others, . The said judgment is dated February 17, 1989, and was rendered by a learned single judge of this court. In appeal, the said judgment was affirmed by a Bench of this court in T.K. Aboobacker and Others, P. Kunhammedkutty Haji and Others, P. Mohammed Haji and Others and E.K. Abdul Khader and Others Vs. Union of India (UOI) and Others, . K. P. Radhakrishna Menon J., disposed of the original petition by judgment dated June 4, 1990. The learned single judge, following the decision of the Bench in T.K. Aboobacker and Others, P. Kunhammedkutty Haji and Others, P. Mohammed Haji and Others and E.K. Abdul Khader and Others Vs. Union of India (UOI) and Others, , held that there is no merit in the original petition and dismissed the same. Subsequently, the petitioner filed Review Petition No. 101 of 1990, in the said original petition and prayed for reconsideration or to review the decision dated June 4, 1990. By an elaborate order dated July 23, 1990, the learned single judge dismissed the review petition. The complaint that all the points raised by the petitioner were not considered was negatived. This writ appeal is filed against the judgment delivered originally in Original Petition No. 3709 of 1990 dated June 4, 1990.

We heard counsel for the appellant. Section 44AC and Section 206C of the Income Tax Act, brought in the statute book by the Finance Act, 1988, are the targets of attack. The two main grounds of attack relied on are that the said provisions of law--Sections 44AC and 206C of the Income Tax Act--are beyond legislative competence and also discriminatory. The above twin aspects are sought to be approached from different angles and arguments were put in different facets. But essentially, the ground of attack comes under the above two heads. Both the above aspects have been considered in detail by Sukumaran J. in the decision in P. Kunhammed Kutty Haji and Others Vs. Union of India (UOI) and Others, . The device of presumptive taxation which acts as an effective check against evasion in certain specific types of business and the history and background relating to the said legislation have been adverted to in detail. The peculiarities of the trade in liquor, timber and forest produce, etc., have been adverted to by the learned single judge in his judgment. The presumption regarding constitutionality of a statute, the factor that the legislative entry should receive the widest interpretation, that trades in some commodities require stringent and corrective approach and additional vigilance, that presumptive taxation acts as an effective check against evasion and viewed in the context and background of the trade in the specified commodities, Parliament is competent to enact the law and that there is no discrimination or arbitrariness in adopting the course, have all been adverted to in the judgment of the learned single judge in detail. Many of the aspects were again considered and the Division Bench concurred with the judgment of the learned single judge in the decision in T.K. Aboobacker and Others, P. Kunhammedkutty Haji and Others, P. Mohammed Haji and Others and E.K. Abdul Khader and Others Vs. Union of India (UOI) and Others, The matter has also been elaborately considered by a Bench of the Andhra Pradesh High Court in A. Sanyasi Rao and Another Vs. Government of Andhra Pradesh and Others, . The attack against legislative competence, discrimination and violation of the fundamental rights under article 19(1)(g) of the Constitution have been considered from different perspectives and the court, after elaborately considering the matter, upheld the legislation as valid and proper and held that it does not suffer from the vice of any constitutional infirmity.

Counsel for the appellant sought to argue before us that the legislation is invalid for some additional reasons and that the provisions of law work hardship and injustice to the assessee. The arguments put forward before us are perspectives, put in a different way, leading to an attack on the competence of Parliament to enact the law and to contend that the legislation is discriminatory in character. In view of the elaborate consideration of the matter in the judgment by Sukumaran J., reported in P. Kunhammed Kutty Haji and Others Vs. Union of India (UOI) and Others, and upheld by a Bench of this court in T.K. Aboobacker and Others, P. Kunhammedkutty Haji and Others, P. Mohammed Haji and Others and E.K. Abdul Khader and Others Vs. Union of India (UOI) and Others, and also the detailed decision by a Bench of the Andhra Pradesh High Court in A. Sanyasi Rao and Another Vs. Government of Andhra Pradesh and Others, , we are of the view that there is no merit in the various pleas sought to be raised before us. We concur with the judgment of the learned single judge dated June 4, 1990.

The writ appeal is dismissed.