GOKAL CHAND MITAL, J. - (1.) M /s. Balwant Rai Kaushal was carrying on business of manufacturing bricks in the State of Haryana since January, 1986 and was registered under the Haryana General Sales Tax Act, 1973 (hereinafter called "the Act' ). It is pleaded that it closed the brick-kiln from 19th June, 1987 as the clay of the area was not fit for making bricks, and applied for cancellation of the registration certificate.
(2.) THE dealer received order from the Assessing Authority dated September 30, 1988, annexure P2, imposing sales tax, interest on the amount not paid up to September 30, 1988 and penalty. The tax was imposed not on the basis of returns filed by the assessee but on the basis of the notification dated 19th October, 1988, copy of which is annexure P1, by which the Haryana General Sales Tax Rules, 1975, framed under the Act (for short "the Rules'), were amended and Chapter 5-A was inserted, whereunder rule 39-A (1) provided for payment of lump sum amount in lieu of sales tax with reference to section 26 of the Act. The assessee came to this Court to challenge the vines of section 26 of the Act as also of rule 39-A of the Rules, and on this basis challenged the validity of the assessment order, annexure P2. Other similar cases were also filed by the other assessees and those were ordered to be heard along with this writ petition. Facts of those cases need not be reiterated as we are basically concerned with the vires of the provisions and those case's would also stand disposed of with the case in hand.
(3.) THE argument raised is that section 26 (1) of the Act does not give guideline nor gives the limit for charging lump sum amount in lieu of sales tax, and, therefore, is vague and arbitrary, and deserves to be struck down. In order to appreciate the argument the provisions of section 26 (1) to (3) are reproduced hereunder : " 26. Payment of lump sum in lieu of sales tax.- (1) The State Government may, in the public interest and subject to such conditions as it may deem fit, accept from any class of dealers, in lieu of the tax payable under this Act, for any period, by way of composition, a lump sum to be determined by the State Government and to be paid at such intervals and in such manner, as may be prescribed, and thereupon during the period such composition remains in force, the provisions of this Act and the rules made thereunder relating to the filing of returns and the maintenance of accounts by such dealer shall not apply to them. (2) Notwithstanding anything to the contrary contained in this Act, a contractor liable to pay tax under this Act may, in lieu of the tax payable under this Act, at his option, exercisable in the manner prescribed, pay on the total value of a works contract being executed by him, a sum at such interval and in such manner, as may be prescribed, calculated at such rate not exceeding ten percentum, as the State Government may, keeping in view the nature and class of the works contract and subject to such conditions, by notification, specify : Provided that a contractor exercising option under this sub-section shall not be entitled to make purchase of any goods without payment of tax on the authority of his registration certificate for use in the execution of the works contract nor shall he be entitled to make adjustment or claim of refund of tax paid at any preceding stage, or deduct turnover of purchase of such goods : Provided further that the option once exercised shall not be revoked till the expiry of three years from the end of the year in which such option in exercised nor a works contract under execution shall be split on such revocation. (3) A contractor exercising option under sub-section (2) shall, so long as the option remains in force, not be required to maintain accounts of his business under this Act or the rules made thereunder except record of payment received or receivable in relation to the works contract executed or under execution. " ;