V. K. SINGHAL, J. - (1.) THIS writ petition has been filed on January 18, 1994, with the prayer that the respondents be directed not to levy the tax at source at the rate of 3 per cent from the running bills of the petitioner in view of the decision given by the apex Court in the case of Gannon Dunkerley & Co. v. State of Rajasthan reported in [1993] 88 STC 204 and to refund the amount of tax deducted at source with interest.
(2.) LEARNED counsel for the petitioner has argued that the contract which has been entered into by the petitioner-company with Oil and Natural Gas Commission for constructing the pipeline and temporary cathodic protection from Oil and Natural Gas Commission (ONGC) gas gathering-station at Gamenvala to Rajasthan State Electricity Board, Ramgarh, contemplates that all material will be supplied by the awarder and the petitioner has to use only consumables and as such not tax is to be deducted. It is also submitted that the provisions of section 5 (3) of the Rajasthan Sales Tax Act, 1954 and rule 29 (2) (i) of the Rajasthan Sales Tax Rules, 1955, have been declared as unconstitutional by the apex Court and therefore the respondents have no jurisdiction to deduct or levy the tax. I have considered over the matter. By a notification dated April 28, 1993, clause (a) of sub-rule (2) of rule 46 was amended and it was provided that the tax is to be deducted at 1 1/2 per cent instead of 3 per cent which was the position earlier. If the tax has been deducted at a wrong rate it was the duty of the petitioner to have brought it to the notice of the respondents the amendment in the Rules, according to which the tax could have been deducted at 1 1/2 per cent instead of 3 per cent. The notifications dated April 28, 1993, are also relevant. So far as the prayer in respect of not to levy the tax at 3 per cent is concerned, the stage has not come because it is only when the assessment is made, the question of making payment of tax at 3 per cent or not levying any tax or lesser rate could arise. It has not been stated in the writ petition that the assessment has been framed and therefore merely on the apprehension of the petitioner no direction can be given that the tax should not be levied at 3 per cent. The respondents have to act in accordance with the provisions of the Act and the Rules made thereunder and the notification issued and if any action is taken which is not in accordance with statutory provisions, the petitioner has remedy, to challenge the same. It is premature to say that the tax will be levied at the rate of 3 per cent. The Rajasthan Sales Tax (Amendment) Act, 1994 (Act No. 6 of 1994) has amended the provisions of section 5 (3) of the Rajasthan Sales Tax Act vide gazette notification dated March 19, 1994, retrospectively from April 1, 1987 and it has been provided that in case of works contract the taxable turnover of the goods (whether as goods or in some other form) involved in the execution of the works shall be subject to tax in accordance with the provisions of sub-section (1 ). Earlier sub-section (3) of section 5 read as under - " Notwithstanding anything contained in this Act, in the case of a works contract, the turnover of such contract shall be subjected to tax : Provided that such deductions, as may be prescribed, may be allowed to a contractor while determining his tax liability. " The above provision was declared to be unconstitutional in the case of Gannon Dunkerley & Co. [1993] 88 STC 204 (SC) and in order to overcome the problem the existing sub-section (3) of section 5 was substituted by the Act of 1994. If there is any illegality in the amendment the proper course for the petitioner was to challenge the validity of the amended section but the amendment of law which is retrospective cannot be lost sight of the since the validity of the provision has not been challenged, sub-section (3) of section 5 as it exists has to be given effect to. Section 5 now in the present form provides only for the rates of tax which is to be determined in accordance with the rates specified in sub-section (1) of section 5. The charging section is the provisions in section 3 even with regard to the works contract. The provisions of section 2 (t) in its explanation provide for determination of turnover. Explanation to section 2 (t) reads as under : " Explanation.- Subject to such conditions and restrictions, if any, as may be prescribed in this behalf - (i) the amount for which goods are sold or supplied shall in relation to a works contract be deemed to be the amount payable to the dealer for carrying out such contract less the cost of labour up to such extent as may be prescribed; (ii) the amount for which goods are sold or supplied shall include any sum charged for anything done by the dealer in respect of the goods sold at the time of or before the delivery thereof; (iii) any cash or other discount on the price allowed in respect of any sale and any amount refunded of articles returned by customers shall not be included; (iv) where for accommodating a particular customer or a purchaser a dealer obtains goods from another dealer and immediately disposes of the same to the said customer or purchaser, the sale in respect of such goods shall be included in the turnover of the latter dealer alone. " Sub-rule (2) of rule 29 was amended on April 4, 1994 and it was provided that the value of goods transferred in the execution of works contract, whether as goods or in some other form, which has already suffered tax, it is not liable to tax under the Act. By reading of provisions of section 2 (t) read with rule 29 (2) (i) it is clear that in respect of works contract the turnover has to be determined by excluding the goods used in the execution of works contract which have already suffered tax or are not liable to tax. The taxable turnover under section 2 (s) is to be determined out of turnover and even from the taxable turnover the deduction as provided under rule 29 has to be excluded. The tax is payable on taxable turnover at the rate specified under section 5 (1 ). As such under the scheme of the Rajasthan Sales Tax Act and the Rules made thereunder it cannot be said that sufficient provisions do not exist for levy of tax. The contention of the learned counsel for the petitioner in this regard is rejected. The last point which has been raised by the counsel for the petitioner that no material is utilised by the petitioner in the execution of the words contract in which the property is transferred and as such no tax can be levied. In the definition of "works contract" itself it is provided that service contracts are excluded from the purview of the works contract and besides that in accordance with the notification dated November 7, 1988 if the material used is only up to 15 per cent of the value of the works contract then no tax is levied. In view of the provisions of law it is for the assessee to move before the assessing authority to get appropriate certificate for not deducting the tax if he is legally entitled to it, but these questions cannot be determined in the extraordinary writ jurisdiction of this Court under article 226 of the Constitution of India as no effort has been made by the petitioner to approach the assessing authority in the matter and the directions cannot be given in the absence thereof.
(3.) LEARNED counsel for the petitioner referred to a judgment of Division Bench of this Court of which neither the particulars not a copy thereof was given and it was assured that he would furnish a copy of the said judgment but it has not been done so. Hence the said judgment cannot be considered. When a judgment is relied upon by the learned counsel, it is his duty to furnish the particulars thereof or to provide a copy of the same, or else it should not be referred to. Consequently, the writ petition is dismissed with the above observations. Writ petition dismissed. .;