PRAKASH KRISHNA,J. - (1.) BY means of the present petition, the petitioner has sought a writ order or direction in the nature of certiorari for quashing of the notification dated 4-3-2008 issued by the State Government (Annexure-8 to the writ petition), being unconstitutional and ultra vires to the U.P. Value Added Tax Act, 2008 (hereinafter referred to as the Act). Also quashing of the order dated 12-2-2009 has been prayed for. A writ of mandamus commanding the respondents namely Deputy Commissioner, Commercial Taxes, Sector-5, Kanpur and Indo Gulf Fertilizers (a Unit of Aditya Birla Nuvo Ltd.) not to ask for or make any deduction towards tax at source under the said Act in respect of the amount receivable by the petitioner against the work order No. MM/214-816661 dated 29-8-2008, has also been sought.
(2.) THE petitioner, a private limited company, undertakes and executes engineering and fabrication works contracts. It claims that M/S Indo Gulf Fertilizers Ltd. the respondent no. 4 herein, awarded to the petitioner a work order for replacement of Combuston Air Pre-Heater (APH) at its factory at Jagdishpur Industrial Area, Sultanpur (U.P.). The said contract is dated 29-8-2008. Total value of the above contract is Rs. 1,33,20,000/- and it was to be completed by 30-4-2009. An application, requesting for issue of direction under Section 34 of the Act to the contractee namely Indo Gulf Fertilizers Ltd. not to deduct the amount of tax towards payment in respect of Labour Contract was filed before the Assessing Authority. The said application has been rejected by the order dated 12-2-2009, impugned in the present petition, on the ground that in view of Section 34(13) of the Act, 4% of the total sum is liable to deducted. Further, no notification has been issued by the State Government in exercise of provisions of Section 34(1) of the Act and as such, it is not possible to issue any such direction as prayed for. Sri S.D. Singh, learned counsel for the petitioner submits that the aforesaid order has been passed by the Assessing Authority on misconstruction of facts and law. He invited attention of the Court towards Notification dated 4-3-2008 issued under Section 34(1) of the Act which provides deduction of tax at source at the rate of 4%. The challenge in the present writ petition is the validity and legality of the said notification. Therefore, the Assessing Authority is not correct in saying that no such notification has been issued.
(3.) A counter affidavit has been filed on behalf of the respondents wherein the contents of the writ petition have not been disputed. A reading of the counter affidavit shows only this much that the tax liability has been determined on the basis of the terms and conditions of the contract as well as the action carried out by the petitioner. The counter affidavit is some what sketchy as it does not deal with legal issues raised by the petitioner in the writ petition. Except the admission or denial of the contents of writ petition, the counter affidavit lacks any material plea in defence.;