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TMI Blog1998 (10) TMI 524X X X X Extracts X X X X X X X X Extracts X X X X ..... ons/notice under section 80 of the Code of Civil Procedure respondents Nos. 4 to 6 did not issue form "D", which gave him cause of action to file the present petition seeking the following reliefs: (a) That the respondent Nos. 4 to 6 be directed to issue the requisite certificate for the purchases made by them of goods in which the property had been transferred to them by way of execution of the works contract awarded to the petitioner and executed by him and consequently pay the tax at the rate of 4 per cent on the said purchases. (b) That the respondent No. 3 be directed to review the assessment keeping in view the issue of the certificate and be also prohibited to make recoveries of the additional so created as per the orders dated February 13, 1995. 2.. Respondents Nos. 2 and 3, 1, 4 and 5, and 6 have filed separate reply(s) affidavit(s) to resist the writ petition. The stand of respondents Nos. 2 and 3 is that, "the concessional rate of tax at 4 per cent can only be charged for the sale made to the Government as per clause (8) of Notification No. 1-15/73-E T (Sectt.) dated May 29, 1974, provided a certificate in form stated in the para of such sale is furnished by the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se to him on February 13, 1995 when the assessment for the years 1987-88 to 1990-91 was finalised, as such, the petition does not suffer from delay and laches. 5.. We have heard the learned counsel for the parties and gone through the record. It is not in dispute that by the 46th Amendment of the Constitution, clause,(29A) was inserted to article 366 to grant sanction to the State Government to leg tax on the sales which otherwise were not failing within the purview of the definition of the word "sale". The relevant para of clause (29-A) is "(29-A) 'tax on the sale or purchase of goods' includes-- (a) a tax on the transfer, otherwise than in pursuance of a contract, of property in any goods for cash, deferred payment or other valuable consideration; (b) a tax on the transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract (c) ................." In pursuance to this clause the State of Himachal Pradesh started charging tax on the value of goods, property whereof is transferred in the execution of the works contract. Accordingly, Notification No. 1-15/73-E T-(Sectt.) dated May 29, 1974 was issued by the Governor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Seal of the authorised officer of the department. **Strike out whichever is not applicable. * Name and complete address of the seller together with his registration certificate number. ** Strike out whichever is not applicable * Name and complete address of the seller together with his registration certificate number. * Particulars of Bill/Cash Memo. * Particulars of Bill/Cash Memo. Dated..............No.............. Dated..............No.............. Amount............................ Amount............................ (Note: To be furnished by the selling dealer). (Note: To be furnished by the selling dealer). Authorised Officer means an Officer authorised to make a purchase on behalf of the Government. o/o Authorised Officer means an Officer authorised to make a purchase on behalf of the Government. (9) to (11)........... (12)..........................." 6. The constitutional validity of the 46th Amendment of the Constitution whereby clause (29A) was inserted to article 366 has been upheld by the Constitution Bench of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xecuted between either of them and the petitioner conferring legal or contractual obligation on them. No doubt the assessing authority and the Commissioner, Excise and Taxation, Himachal Pradesh could charge concessional rate of 4 per cent tax for the sales made to respondents Nos. 4 to 6 only if the petitioner had produced form "D" issued by respondents to 4 to 6. 8.. Therefore, the question for determination is whether respondents Nos. 4 to 6 have failed their statutory duty by. not issuing form "U.' to the petitioner despite his requests/representation/notice under section 80 of the Code of Civil Procedure? The stand taken by them is too technical that there is no provision of law or the clause in the agreement(s) directing them to issue form "D". But if we jointly read the amended definition of "sale', clause (8) of the notification and the form of certificate (form "D") given under the proviso (8), it is clear that the department which makes purchase as envisaged by these provisions of law are bound to issue form "D" to enable the dealer-contractor, like the petitioner, to avail concessional rate of tax, otherwise the very purpose of providing concessional rate of tax by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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