- (1.) The petitioners are brick kiln owners and are registered under the Punjab General Sales Tax Act, 1948 (for brevity 'the Act'). Their grievance is that they cannot be subjected to a lump sum tax which is determined on the basis of the capacity of brick kiln rather than actual sales. They have, therefore, challenged the notification dated 30.06.1993 (P-1) envisaging realisation of lump sum amount based on actual capacity. They have claimed that their return of sales have been filed regularly and they are paying tax according to assessment framed on that basis. When the matter came up for consideration on 24.11.1994, a Division Bench of this Court while admitting the petition stayed the recovery of lump sum tax subject to condition that payment of tax otherwise under the provisions of the Punjab General Sales Tax Act, 1948 shall be paid. Accordingly, the petitioners have claimed that they have paid the tax on the actual sale and purchase not on the basis of the impugned notification in lump sum.
(2.) The prayer made by them in the instant petition is for declaring the Section 5(4) of the Act as unconstitutional and for quashing the notification dated 30.06.1993 (P-1). which incorporated Section 5(4) of the Act confers power on the State Government to direct that an owner of a brick kiln in respect of the sale of bricks produced in his brick kiln on or after 01.07.1993 is to pay a lump sum tax at the rate specified in the notification. On the basis of the aforesaid power, a demand has been raised against petitioner No. 1 to pay the lump sum amount which would mean that the tax was not to be paid on the actual sale.
(3.) It is significant to notice that on 25.04.1995, sub Section (4) of Section 5 of the Act has been deleted and a notification as published in the Punjab Government Gazette of that date is taken on record as Mark 'A'. Therefore, the amendment made on 30.06.1993 remained in operation only from 01.07.1993 to 25.04.1995. Therefore, the challenge to the aforesaid provision in respect of the period of its operation has been made by the petitioners.;