Statute doesn’t envisage tax as a barrier to free movement of trade, commerce: CJI

"Once it operates as a barrier, it stops being a tax. It becomes an obstruction and offensive," says T.S. Thakur.

Updated - December 04, 2021 11:30 pm IST

Published - August 04, 2016 04:21 pm IST - NEW DELHI:

A day after the Parliament passed the Goods and Services Tax Bill, the Supreme Court on Thursday observed that the Indian Constitution does not envisage tax as a “barrier” to free movement of trade, commerce and intercourse.

“Once it operates as a barrier, it stops being a tax. It becomes an obstruction and offensive,” Chief Justice of India T.S. Thakur observed.

Debate between Bench, A-G

The observations came during a debate between a nine-judge Constitution Bench led by the Bench and Attorney-General Mukul Rohatgi on the constitutionality of the levy of varied entry tax by different States governments.

The debate was on the contours of Article 301 of the Constitution dealing with freedom, trade and commerce in the country.

‘Movement without restriction’

“It is this freedom of trade, commerce and intercourse which allows a trader to move from place to place within the country without obstruction. A trader moves constantly and so long as his fundamental right is protected under Article 19, there is no question of a fiscal restriction being an obstruction,” Chief Justice Thakur observed.

Mr. Rohatgi, dealing with Article 301, said a restriction on free intra-State trade should be “reasonable and in public interest.” He said special provisions relating to different States and grant of financial subsidies to them do not amount to discrimination if they are done for the upliftment of the particular State.

Difference in history, geography

“You cannot bring equality by eclipsing the fact that there is difference in the history, geography and development graph of States. People of Tamil Nadu have never faced the trials and tribulations of North and North-Eastern States,” Mr. Rohatgi argued.

“One-third of our country is infested by Naxalites running through the heart of our country... So we have to develop these States,” Mr. Rohatgi said. He justified the higher taxation regimes followed by some States in order to augment their efforts to build infrastructure.

States not subservient

“States are not subservient to the Centre under the Constitution... States are not appendages but supreme in their own right under the Constitution,” Mr. Rohatgi submitted.

The Bench is hearing on the validity of separate entry taxes on goods mandated by various State government statutes, without heeding to the plea of the Centre to wait for the passage of GST Bill in Parliament.

Mr. Rohatgi had at the very commencement of the case pleaded to the Bench that they should wait till the fate of the pending GST (Goods and Services Tax) Bill was known.

‘Complex tax issues involved’

The bench, also comprising Justices A.K. Sikri, S.A. Bobde, Shiva Kirti Singh, N.V. Ramana, R. Banumathi, A.M. Khanwilkar, D.Y. Chandrachud and Ashok Bhushan, decided to go ahead with the hearing, saying that “complex tax issues are involved.”

It said issues related to past levies by the States will be decided in the matter.

The Attorney-General submitted that some arrangement could be made in respect to past demands by the States relating to entry tax after GST Bill, involving a Constitution amendment, was passed by Parliament.

Entry tax is imposed by State governments on movement of goods from one State to another. It is levied by the State that receives goods.

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