A Three-Member bench of the West Bengal Taxation Tribunal has unanimously held that the State has no legislative competence to make laws in the field of entry of goods into the local area for consumption, use, and sale as Entry 52 of List II of the 7th Schedule of the Constitution of India was deleted permanently to introduce GST
The Tribunal comprising Justice Shri Malay Marut Banerjee, Chairman, Shri Suranjan Kundu, Judicial Member, and Mr.Chanchalmal Bachhawat, Technical Member was considering a bunch of petitions wherein the validity of West Bengal Tax On Entry of Goods into Local Area Act. 2012 was challenged. The Act was introduced w.e.f 01.04.2012 in purported exercise of the power conferred under Article 246 read with Entry 52 of the list II of the 7th Schedule of the Constitution of India. The subject matter of taxation under Entry Tax Act was only goods which were imported from outside of state of West Bengal. The vires of this Act was challenged and Hon’ble Single Bench of Hon’ble High Court Calcutta on constitutional grounds.
The Three-Member bench held that the State of West Bengal had no legislative competency to introduce section 5 and 6 of West Bengal Finance Act 2017 w.e.f 01.07.2017 and the said provisions are hereby declared ultra vires and unconstitutional.
“This Judgement is applicable to all other applications which are not mentioned in this Judgement but are pending before this Tribunal challenging section 5 and 6 of the West Bengal Finance Act 2017,” the bench said.
Shri Suranjan Kundu, Judicial Member expressed that even to effect the amendment the Respondent State was required to follow the mandate prescribed under Article 245 and 246(3) of the Constitution read with the seventh schedule of the Constitution.
“Since Entry 52 of seventh schedule is no longer existing the State has no legislative competency to amend anything on Entry Tax matters and Article 19 has not conferred such power. I therefore, hold that section 5 and 6 of Amending Act 2017 (West Bengal Finance Act 2017 enacted on 06.03.2017) is unconstitutional and non est in the eyes of law, having no legal effect being beyond the Legislative competence of the State of West Bengal,” the Member said.
Concurring with the above findings of the Judicial Member, Shri Malay Marut Banerjee, Chairman observed that “even assuming for a moment that the West Bengal Entry Tax Act was not struck down by any judgment of the High Court can it be said that the amendment introduced retrospectively and validation of the Act by way of introducing Finance Act of 2017 is within the legislative competence of the State Government? Having regard to the deletion of Entry 52 of the State List and bearing in mind the provision contained in Section 265 of the Constitution we are impelled to hold that the State Legislature did not have the legislative competence to bring in such amendment insofar as it relates to the West Bengal Tax on Entry of Goods into Local Areas Act, 2012.”
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