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TMI Blog2007 (3) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... ND MARKANDEY KATJU JJ. L.N. Rao, Senior Advocate (Ms. T. Anamika and Guntur Prabhakar, Advocates, with him) for the appellants. R. Sundervardhan, Senior Advocate (Annam D.N. Rao, Manoj Saxena, Rajnish Kumar Singh, Rahul Shukla and T.V. George, Advocates, with him) for the respondents. -------------------------------------------------- ORDER M.H.S. ANSARI J. The above two writ petitions have been heard analogously as the same are filed by the same petitioner claiming identical reliefs. They are being disposed of by this common order. For the sake of convenience, W.P. No. 9784 of 2004 is taken up for consideration and orders passed in this writ petition shall also govern W.P. No. 9846 of 2004. Pursuant to a notice before admission, respondents have appeared before the court and also filed their counter-affidavits. Having heard the learned counsel for the respective parties, this court is inclined to uphold the objection raised on behalf of the State-respondents by their learned Special Standing Counsel for Commercial Taxes as to the maintainability of the writ petition on the ground that the dispute is between two private individuals namely, petitioner- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel for the petitioner relying upon the judgment of the Supreme Court in ABL International Ltd. v. Export Credit Guarantee Corporation of India Ltd., submitted that there is no bar for entertaining a writ petition even if the same arises out of a contractual obligation and or involves some disputed questions of fact. We are of the view that reliance by the learned counsel for the petitioner upon the said judgment is misplaced. The dispute in the present case, as noticed supra, is between the petitioner and the private respondents 2 and 3. The ratio of the said judgment of the Supreme Court in ABL International Ltd. in the circumstances, has no application. It is not a case where the instrumentality of the State has acted in contravention of the requirement of article 14 of the Constitution of India. Instant case is one where the terms of the private contract between non-official respondents and the petitioner requires to be construed. The matter falls squarely within the realm of private law. It is, therefore, not a case where a writ court should exercise its discretion in favour of the petitioner to entertain the writ petition. The petitioner has alternative remedy, which it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t such sub-contractor is a registered dealer liable to tax under the Act and that the turnover of such amount is included in the return of turnover filed by such sub- contractor." In terms of the said provision of law, the appellant before us only was to be considered as the "dealer" within the meaning of the provisions of the said Act. It is thus an assessee under the said Act. The grievance of the appellant is that although tax had been deducted at source from his running bills by the respondent Nos. 2 and 3 purported to be in terms of section 5H of the said Act, but they did not fulfil their statutory obligation in remitting the amount so deducted in terms of sub- section (2) of section 5H thereof. Appellant in the assessment proceedings, inter alia, raised a specific contention that the tax deducted at source from its running bills by the respondent Nos. 2 and 3 had not been remitted to the concerned authority. The assessing officer, however, held a purported meeting between the representatives of the appellant and respondent Nos. 2 and 3 and arrived at a conclusion that the bills, showing deduction at source, submitted by the appellant are not correct. An appeal was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 24,786 14. Rs. 75,68,618 Rs. 1,01,069 15. Rs. 22,16,742 Rs. 29,757 16. Rs. 96,00,840 Rs. 1,28,352 17. Rs. 15,51,133 Rs. 20,965 Despite the said finding, however, the appellant herein was directed to deposit the amount of tax assessed stating, 'The claim against the TDS credit for an amount of Rs. 43,00,004 is examined and found untenable and not in accordance with the provision of the APGST Act, 1957. The TDS certificate amounting to Rs. 35,15,577 issued in favour of the contractor M/s. Madhucon Projects Ltd., and M/s. Madhucon Binapuri J.V. cannot be given credit to their account as per the provision of the APGST Act, 1957. In view of above circumstance the contentions raised by them are rejected and confirmed the turnover proposed in the show cause notice issued for the year 2002-03'." In the meanwhile, the appellant filed writ petition before the High Court, inter alia, praying, ". . . I pray that this honourable court may be pleased to issue an appropriate writ, order or direction particularly in the nature of writ of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act, the assessing officer was statutorily obligated to initiate proceedings against respondent Nos. 2 and 3 for realisation of the amount which had been deducted at source from the running bills of the appellant. The assessing officer thus having not performed his statutory duty qua respondent Nos. 2 and 3, it was urged, the writ petition was maintainable. Learned counsel for the respondents, on the other hand, supported the impugned judgment. Having heard learned counsel for the parties at some length and keeping in view the peculiar facts and circumstances of this case we are of the opinion that interest of justice shall be met if the Commissioner of Commercial Taxes, i.e., respondent No. 5 herein, is directed to go into the aforementioned question and pass appropriate order. He may do so either himself or nominate any Additional Commissioner of Commercial Taxes on his behalf for the purpose. The appellant as also respondent Nos. 2 and 3 may produce their books of account and other proof before the said authority. We have no doubt in our mind that an appropriate order/direction shall be passed/issued having regard to the entries made in the books of account and othe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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