JAIPARKASH INDUSTRIES LTD Vs. STATE OF HIMACHAL PRADESH
LAWS(HPH)-1997-5-4
HIGH COURT OF HIMACHAL PRADESH
Decided on May 21,1997

JAIPARKASH INDUSTRIES LTD. Appellant
VERSUS
STATE OF HIMACHAL PRADESH (AND OR CASES). Respondents


Referred Judgements :-

CIBATUAL LIMITED V. UNION OF INDIA [REFERRED TO]
BUILDERS ASSOCIATION OF INDIA V. STATE OF BIHAR [REFERRED TO]
COMMERCIAL TAXES OFFICER, CIRCLE D, JAIPUR V. RAJASTHAN ELECTRICITY BOARD [REFERRED TO]
STATE OF MADRAS VS. CANNON DUNKERLEY AND CO MADRAS LIMITED [REFERRED TO]
KHYERBARI TEA CO LIMITED KHYERBARI TEA CO LIMITED VS. STATE OF ASSAM:DESSAI AND PARBUTTIA TEA CO LTD [REFERRED TO]
J K COTTON SPINNING AND WEAVING MILLS CO LIMITED VS. SALES TAX OFFICER KANPUR [REFERRED TO]
INDIAN ALUMINIUM CABLES LIMITED R N GHANEKAR AND COMPANY VS. STATE OF HARYANA [REFERRED TO]
STATE OF HARYANA VS. DALMIA DADRI CEMENT LIMITED [REFERRED TO]
BUILDERS ASSOCIATION OF INDIA VS. UNION OF INDIA [REFERRED TO]
GANNON DUNKERLEY AND CO LARSEN AND TOUBRO LIMITED VS. STATE OF RAJASTHAN [REFERRED TO]
BUILDERS ASSOCIATION OF INDIA VS. STATE OF KARNATAKA [REFERRED TO]
TATA ENGINEERING AND LOCOMOTIVE COMPANY LIMITED VS. STATE OF BIHAR [REFERRED TO]
Y K SINGHAL VS. STATE OF U P [REFERRED TO]
ASSOCIATED CEMENT CO LTD VS. ASSISTANT COMMISSIONER OF SALES TAX [REFERRED TO]
BRAJENDRA MISHRA VS. STATE OF ORISSA [REFERRED TO]
PUNJ LLOYD LTD VS. STATE OF M P [REFERRED TO]
KEC INTERNATIONAL LIMITED VS. STATE OF KARNATAKA [REFERRED TO]
SYMON VS. STATE OF KERALA [REFERRED TO]
SPEDDING DINGA SINGH AND CO VS. PUNJAB STATE [REFERRED TO]
TIRATH RAM AHUJA LIMITED VS. STATE OF HARYANA [REFERRED TO]
GEETA PRASAD SINGH AND CO VS. STATE [REFERRED TO]
NATIONAL HEAVY ENGINEERING CO-OPERATIVE LIMITED VS. STATE OF HARYANA [REFERRED TO]
CONSTRUCTION AND CONSTRUCTION VS. UNION OF INDIA [REFERRED TO]


JUDGEMENT

M.SRINIVASAN, C.J. - (1.)I . Introduction : In these writ petitions, the constitutional validity of section 12-A of the Himachal Pradesh General Sales Tax Act, 1968 (hereinafter referred to as "the Act") and rule 31-A of the Himachal Pradesh General Sales Tax Rules, 1968 framed thereunder (hereinafter referred to as "the Rules") is challenged. II. Facts :
(2.)THE facts in all these cases excepting C.W.P. No. 63 of 1996 are similar. The petitioners claim to carry on business of implementation and execution of electric projects for the generation and distribution of electricity. Excepting the petitioner in C.W.P. No. 63 of 1996, the petitioners were awarded "works contract" for the construction of civil work for different parts by M/s. Nathpa Jhakri Power Corporation Ltd., New Delhi, to be executed within the State of Himachal Pradesh. In C.W.P. No. 1839 of 1993, it is for Pressure Shafts and Power House Complex. In C.W.P. No. 199 of 1994, it is for dam, intake and desalting chambers as well as head race tunnel from station 0.0 m to 16042 m including sholding works. In C.W.P. No. 208 of 1994 it is for head race tunnel from station 16042 m to 27295 m including surge shaft. In C.W.P. No. 152 of 1995 the contract was for construction of main concrete dam and coffer dams at Camera Hydro-Electric Project. According to the petitioner, the works were executed and handed over to the contractee and claims were also submitted for payment. In C.W.P. No. 63 of 1996, the petitioner was awarded a works contract for the implementation and execution of 300 M. W. Baspa Hydro Electric Project Stage-II in Kinnaur District by the Government of Himachal Pradesh.
Though there are some differences in the contentions raised in the pleading, the arguments advanced by learned Senior Counsel for the petitioners in all the cases are the same. There is no dispute that the petitioners are dealers as defined by section 2(c) of the Act. It is also not in dispute that by the execution of the works contracts, the petitioners would be transferring the property in goods involved in the execution of the contracts either in full or in the goods as such and the said transfer will fall within the ambit of word "sale" as defined in section 2(f) of the Act. The validity of no other section in the Act is challenged. III. Impugned section and the Rules :

(3.)THE impugned section 12-A was introduced in the Act by the State Act No. 18 of 1991. The section reads as follows :
"12-A(1). Notwithstanding anything to the contrary contained in section 13, every person making any payment or discharge of any liability on account of valuable consideration payable for the transfer of property in goods, whether as goods or in some other form, involved in the execution of works contract shall deduct an amount not exceeding four percentum, as may be prescribed, purporting to be a part or full of the tax payable on such sales, from the bills or invoices raised by the works contractor as payable by the person : Provided that no such payment or discharge of any bill raised by the works contractor shall be made without deduction : Provided further that if the State Government is satisfied that it is necessary to do so in the interest of the State revenue, it may notify the names/posts of such persons who shall be competent persons to make such deduction. (2) The deduction referred to in sub-section (1) shall be made in the manner which may be prescribed. (3) The payment of such deduction into the Government treasury shall be the responsibility of the person making such deduction. (4) The person making such deduction shall issue deduction certificate in the prescribed manner to the person or dealer from whose bill or invoice such deduction has been made. (5) If any person contravenes any or all of the provisions of sub-sections (1), (3) and (4) the prescribed authority shall, after giving an opportunity of being heard, by an order, in writing, direct that such person shall pay by way of penalty, a sum not exceeding twice the amount of tax deductible under sub-section (1). (6) The provisions of sections 16 and 16-A for recovery of any amount of tax due from a dealer shall mutatis mutandis apply for recovery of any amount of tax, deducted and/or any penalty imposed but not deposited under this section."



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