CONSTITUTIONAL ASPECTS
By K.S.Naveen Kumar, Advocate,
Bangalore
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MODULE 1
K.S.NAVEEN KUMAR, ADV.
1. What is law
2. Scholars views about law
3. Significance of law
• Objective : To understand the basic
description of law and its significance
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WHAT IS “LAW”?
 Law is nothing but a bundle of common
sense.
K.S.NAVEEN KUMAR, ADV.
Technical sense:
A set of rules and procedures to be followed
in general by the members of public or
particular section of the society. Eg. Traffic
Rules and criminal law, Advocates Act and
CAs Act.
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ABOUT LAW….
K.S.NAVEEN KUMAR, ADV.
• “Rules of conduct enforced by the
State to maintain peace and order in
the society”
• “The system of rights and obligations
which the State enforces”.
Scholar’s views:
Austin – Law is a rule of conduct
imposed and enforced by the
sovereign.
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SCHOLAR ‘S VIEW ABOUT LAW
K.S.NAVEEN KUMAR, ADV.
• Salmond – Law is the body of
principles recognized and applied by
the State in the administration of
justice.
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SIGNIFICANCE OF LAW
 Man lives in a society – Social animal.
Does not live in isolation. Other
individuals also co-exist. Rights and
obligations to be defined to maintain
peace, law and order.
K.S.NAVEEN KUMAR, ADV.
• Why law:
‘Law is like oxygen in air, people would
not realize its importance unless it is
withdrawn’.
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SIGNIFICANCE OF LAW
Rule of man will prevail without law
(eg. If discretion of tax collection is
vested with an officer without any legal
basis – subjects will be exposed to
arbitrary, capricious and whimsical
exercise of power).
K.S.NAVEEN KUMAR, ADV.
In life or business – survival of the
fittest. Without law it would be survival
of the most ruthless.
Law – makes rights secure.
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MODULE 2
K.S.NAVEEN KUMAR, ADV.
• Source of Law
• Tax - historical background
• Nature of tax
• Objective: (a) To know from where law
emerges.
• (b) To briefly understand history of taxation
and its nature
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LAW… SOURCES OF LAW…
K.S.NAVEEN KUMAR, ADV.
• Currently:
a. Legislation i.e. Acts of Parliament and
State Legislatures.
b. Rules made by Government authorities.
c. Judgments i.e. case laws.
d. Customs and usages.
Olden times:
a. Scriptures.
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b. Customs and usages.
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c. Ruler’s / King’s mandate/ verdict.
• 2000 years ago – Decree from
Augustus Caesar that all the world
should be taxed.
• Taxes in Greek, Roman and German
Empire
• Basis of turnover or occupation
• Manu Smriti and Arthasastra – refers to
variety of tax measures
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• Kautilya (Chanakya or Vishnu Gupta) –
Arthasastra.
• Major portion devoted to financial matters
including financial administration.
• Arthasastra – first authoritative text on
public finance, administration and fiscal
laws in this country.
• Bhaga, Bali, Kara, Vivita, Hiranya, Rajju,
Chora Rajju
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• Manu said:

- Taxes should be related to the
income and expenditure of the subject.
- Either complete absence of taxes or
Exorbitant taxation should be avoided.
- King should arrange the collection of
taxes in such a manner that the
subjects do not feel the pinch of paying
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taxes.
 Mughal rule – taxes prevailed
 Britishers levied various taxes
 It was only for the good of his subjects that he
collected taxes from them, just as the Sun
draws moisture from the Earth to give it back
a thousand fold – Kalidas
 “ The hardest thing in the world to understand
is the income-tax” – Albert Einstein
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Essential characteristics of a tax
Not a voluntary payment or donation
Enforced contribution exacted pursuant to
legislative authority, in exercise of taxing
power.
Imposed, levied and collected for the purpose
of raising revenue
Used for public or governmental purposes
and not for payment for some special privilege
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granted or service rendered
Module 3
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Constitution
Context and background
Preamble
Fundamental duties
Fundamental rights
Important Articles w.r.t. taxation
Lists – legislative fields w.r.t. taxation
Objective: To examine few basic aspects of
constitution, which are relevant to indirect
taxes
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FUNDAMENTAL DUTIES – Article 51A:
It shall be the duty of every citizens of India: To abide by the Constitution and respect its ideals and institutions, the National
Flag and the National Anthem;
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To cherish and follow the noble ideals which inspired our national struggle for
freedom;
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To uphold and protect the sovereignty,
unity and integrity of India;
To defend the country and render national
service when called upon to do so;
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• To promote harmony and the spirit of common brotherhood amongst
all the people of India transcending religious, linguistic and regional
or sectional diversities; to renounce practices derogatory to the
dignity of women;
• To value and preserve the rich heritage of our composite culture;
• To protect and improve the natural environment including forests,
lakes, rivers and wild life, and to have compassion for living
creatures;
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• To develop the scientific temper, humanism and the spirit of inquiry
and reform;
• To safeguard public property and to abjure violence;
• To strive towards excellence in all spheres of individual and
collective activity so that the nation constantly rises to higher levels
of endeavour and achievement.
• Who is a parent or guardian to provide opportunities for education to
his child or, as the case may be, ward between the age of 6 and 14
years.
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Fundamental Rights
• Article 13 – Laws inconsistent with or in
derogation of the fundamental rights – void
Right to Equality
Article 14 – Equality before law
Article 15 – Prohibition of discrimination on
grounds of religion, race, caste, sex or
place of birth
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Fundamental Rights….
• Art.16 – Equality of opportunity in matters
of public employment
• Art.17 - Abolition of untouchability
• Art.18 – Abolition of Titles
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Fundamental Rights ….
RIGHT TO FREEDOM
• Art.19 – Protection of certain rights
regarding freedom of speech and
expression, assemble peaceably and
without arms, form associations or unions,
movement throughout territory of India,
practise profession and carry on
occupation, trade or business. etc.
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Fundamental Rights…
• Art.20 – Protection in respect of conviction for
offences
 ‘No person shall be convicted of any offence
except for violation of the law in force at time of
commission of the act charged as an offence,
nor be subjected to a penalty greater than that
which might have been inflicted under the law in
force at the time of the commission of the
offence’ – Art.20(1)
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Fundamental Rights…
• Art.20(2) – “No person shall be prosecuted
and punished for the same offence more
than once.”
• Art.20(3) – “No person accused of any
offence shall be compelled to be a witness
against himself.”
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Fundamental Rights…
• Art.21 – Protection of life and personal
liberty – No person shall be deprived of his
life or personal liberty except according to
procedure established by law.
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Fundamental Rights…
• Art.21A – Right to Education
• Art.22 – Protection against arrest and
detention in certain cases
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Fundamental Rights…
• RIGHT AGAINST EXPLOITATION
• Art.23 – Prohibition of Traffic in human
beings and forced labour
• Art.24 – Prohibition of employment of
children in factories etc.
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Fundamental Rights….
• RIGHT TO FREEDOM OF RELIGION
• Art.25 – Freedom of conscience and free
profession, practice and propagation of
religion
• Art.26 – Freedom to manage religious
affairs
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Freedom rights …
• Art.27 – Freedom as to payment of taxes
for promotion of any particular religion
• Art.28 – Freedom as to attendance at
religious instruction or religious worship in
certain educational institutions.
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Fundamental Rights…
• CULTURAL AND EDUCATIONAL
RIGHTS
• Art.29 – Protection of interests of
minorities
• Art.30 – Right of minorities to establish
and administer educational institutions
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Fundamental Rights…
• RIGHT TO CONSTITUTIONAL
REMEDIES
• Art.32 – Remedies for enforcement of
rights conferred by this part
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India – discovered in new ST law!!
• India – section 65B(27) - (27) "India" means,• (a) the territory of the Union as referred to in clauses
(2) and (3) of article 1 of the Constitution;
• (b) its territorial waters, continental shelf, exclusive
economic zone or any other maritime zone as defined
in the Territorial Waters, Continental Shelf, Exclusive
Economic Zone and other Maritime Zones Act, 1976;
(80 of 1976.)
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India….
• (c) the seabed and the subsoil underlying the
territorial waters;
• (d) the air space above its territory and territorial
waters; and
• (e) the installations, structures and vessels
located in the continental shelf of India and the
exclusive economic zone of India, for the
purposes of prospecting or extraction or
production of mineral oil and natural gas and
supply thereof;
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Distribution of Legislative Powers
• Art.245 – Extent of laws made by
Parliament and by the Legislatures of
States
• Art.246 – Subject matter of laws made by
Parliament and by the Legislature of
States
• Art.248 – Residuary powers of legislation
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• Art.265 – No tax shall be levied or
collected except by authority of law.
• Art.285 – Exemption of property of the
Union from State taxation
• Art.289 – Exemption of property and
income of a State from Union taxation
• Art.300A – Persons not to be deprived
of property save by authority of law
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Three organs of the State
• Parliament/Legislature
• Judiciary
• Executive
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• Art.226/227 – Writ Petition - Types
• Types of writ – mandamus, certiorari,
prohibition, quo-warranto, habeas corpus
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Art.366 - Definitions
• Art.366(28) – taxation includes the
imposition of any tax or impost, whether
general or local or special, and ‘tax’ shall
be construed accordingly.
• Art.366(29A) – deeming fiction of sale or
purchase of goods – 46th amendment 1982
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• Union List – few entries
• 82 – Taxes income other than
agricultural income
• 83 – Duties of customs including
export duties
• 84 – Duties of excise on tobacco and
other goods manufactured or
produced in India except:
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• (a) alcoholic liquors for human
consumption;
• (b) opium, Indian hemp and other drugs
and narcotics,
• but including medicinal and toilet
preparations containing alcohol or any
substance including in sub-paragraph
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(b) of this entry
• 85 – Corporation Tax
• 92A – Taxes on sale or purchase of
goods other than newspapers, where
such sale or purchase takes place in the
course of interstate trade or commerce
• 92B – Taxes on consignment of goods
where such consignment takes place
during interstate trade or commerce.
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• 92C – Tax on services (not yet
effective).
• 97 – any other matter not included in
List II, III and any tax not mentioned in
list II or III (residual powers)
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• 46 – Taxes on agricultural income
• 51 – Excise duty on alcoholic liquors, opium
and narcotics
• 52 – Tax on entry of goods into a local area
for consumption, use or sale therein (usually
called octroi)
•
54 – Tax on sale or purchase of goods other
than newspapers except tax on interstate
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sale or purchase
• 35 – Mechanically propelled vehicles
including the principles on which taxes on
such vehicles are to be levied.
• 44 – Stamp duties other than duties or
fees collected by means of judicial stamps,
but not including rates of stamp duty
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Importance of constitution –
events/persons (N.A.Palkhivala &
Justice M.N.Venkatachaliah)
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About Constitution
• “If the Constitution is to be taken seriously,
the interpretation and fulfillment of these
general objects of policy will raise great
difficulties for legislatures, and these
difficulties will bring the Constitution, the
Courts and the Legislature into conflict and
disrepute. If these declarations are,
however, to be treated as ‘words’ they will
bring discredit upon the Constitution also –
Prof.Wheare
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QUERIES ???
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for your unconditional and
committed listening
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