JUDGMENT : G.C.Bharuka, J. 1. THE petitioner is a forest contractor. Consequent to his participation in a tender-cum-auction sale of cashew crops for the year 1995-96, he has been awarded with a work order dated October 28, 1995 (annexure "A"), for the areas referred to therein subject to his fulfilling the conditions of the agreement. One of the conditions, which is of a general nature incorporated in all sale notifications issued by the Forest Department, is to the following effect : "9. Each purchaser shall, after a lot has been knocked down in his favour by the sale conducting officer, pay full value of his bid inclusive of the deposit made as per condition 5 supra plus the F.D.T. 12 per cent, sales tax 13 per cent, s.c. 15 per cent. on S.T. and I.T. at 15 per cent. and also s.c. at 10 per cent. on I.T. on the purchase money immediately on conclusion of the sale, either in cash or by a D.D. at par value drawn on any nationalised bank payable to the Silviculturist, Central Zone, Bangalore." 2. THE present writ petition has been filed by the petitioner with a prayer to restrain the respondents from collecting income-tax at the rate of 15 per cent. as income-tax on the bid amounts payable by them and also the surcharge at the rate of 10 per cent. on the said income-tax, by declaring section 206C of the Income-tax Act, 1961 ("the Act" in short), as constitutionally invalid. Section 206C of the Act as contained in Chapter XVII thereof titled as "Collection and recovery of tax" provides for collection of income-tax by several modes including by deduction or collection at source. Section 206C which was originally enforced from June 1, 1988, envisages collection of tax at source in respect of the persons trading in alcoholic liquor, timber and other forest produce. Disobedience of the said provisions visits the offending person with penal consequence as envisaged under the Act. 3. Section 206C which was originally enforced from June 1, 1988, envisages collection of tax at source in respect of the persons trading in alcoholic liquor, timber and other forest produce. Disobedience of the said provisions visits the offending person with penal consequence as envisaged under the Act. 3. SECTION 206C(1) as originally introduced was amended by the Direct Tax Laws (Amendment) Act, 1989, with effect from June 1, 1988, which is the only sub-section relevant for the present purposes reads as under : (1) Every person, being a seller referred to in section 44AC, shall, at the time of debiting of the amount payable by the buyer referred to in that section to the account of the buyer or at the time of receipt of such amount from the said buyer in cash or by the issue of a cheque or draft or by any other mode, whichever is earlier, collect from the buyer of any goods of the nature specified in column (2) of the Table below, a sum equal to the percentage, specified in the corresponding entry in column (3) of the said Table, of such amount as income-tax on income comprised therein : Provided that where the Assessing Officer, on an application made by the buyer, gives a certificate in the prescribed form that to the best of his belief any of the goods referred to in the aforesaid Table are to be utilised for the purposes of manufacturing, processing or producing articles or things and not for trading purposes, the provisions of this sub-section shall not apply so long as the certificate is in force." 4. SECTION 44AC of the Act provides a special provision for computing profits and gains from business in the aforesaid trades by providing for a presumptive income at the rates mentioned in the schedule to the said section. The provisions of section 44AC as well as section 206C as originally introduced were challenged before various High Courts on the grounds of legislative competence as also on the ground of offending Part - III of the Constitution. The Supreme Court, considering the importance of the question involved, under its order dated October 9, 1990, passed in C.M. (Transfer) Petitions Nos. The Supreme Court, considering the importance of the question involved, under its order dated October 9, 1990, passed in C.M. (Transfer) Petitions Nos. 109-277 of 1990 (Union of India v. Shankar Prasad) made the following observations and directions in relation to all the writ petitions challenging the validity of section 44AC/206C of the Act : "It is stated that the matter is being considered by a constitutional Bench of this court, a decision of the constitutional Bench will be binding on the High Courts. We, accordingly, direct the final disposal of those cases pending before the High Courts be stayed till the disposal of the matters before the constitutional Bench. Transfer petition is accordingly disposed of. High Courts will be liberty to dispose of any interlocutory application filed before them." It has been stated at the Bar that the aforesaid cases involving the issue of validity of section 44AC/206C of the Act is still pending consideration before the Supreme Court. 5. Be that as it may, Parliament in its wisdom has deleted section 44AC by the Finance Act, 1992, with effect from April 1, 1993, and has simultaneously through the same exercise substituted the old section 206C by a new one, sub-section (1) whereof reads as under : "Every person, being a seller shall, at the time of debiting of the amount payable by the buyer to the account of the buyer or at the time of receipt of such amount from the said buyer in cash or by the issue of a cheque or draft or by any other mode, whichever is earlier, collect from the buyer of any goods of the nature specified in column (2) of the Table below, a sum equal to the percentage specified in the corresponding entry in column (3) of the said Table, such amount as income-tax : Provided that where the Assessing Officer, on an application made by the buyer, gives a certificate in the prescribed form that to the best of his belief any of the goods referred to in the aforesaid Table are to be utilised for the purposes of manufacturing, processing or producing articles or things and not for trading purposes, the provisions of this sub-section shall not apply so long as the certificate is in force." 6. The scheme under the old and new section 206C for collection of tax at source is basically the same and since the challenge to the constitutional validity of the old provision is still pending before the Supreme Court, I refrain from entering into the said question. Despite the same, I find no good ground for restraining the respondents from making collections in terms of the legislative mandate, because, irrespective of the ultimate judgment of the apex court, the petitioners will be always entitled to claim refund of the amounts so collected. But, in case the constitutional validity of the provision is upheld, it may well nigh be difficult for the Income-tax Department to nab the contractors concerned to realise the taxes, - the mischief which Parliament had intended to arrest. Moreover, as per the scheme envisaged under Chapter XVII of the Act itself, if ultimately on regular assessment the contractors like the petitioner are able to prove that they have not earned any taxable income to the extent of the income-tax collected during the concerned assessment year/s, they will be entitled to get refund of excess collections with statutory rate of interest provided under the Act. As such, they cannot complain of any irreparable injury. Therefore, the balance of convenience also warrants denial of the relief claimed. Before parting, I want to clarify that under the provisions of section 206C the respondents can collect only income-tax at the rate of 15 per cent. on the amount payable by a contractor. This section does not further provide for collecting any surcharge. Anyhow, counsel for the respondents has brought to my notice sub-section (6) of section 2 of the Finance Act, 1995, which reads as under : "In cases in which tax has to be collected under section 206C of the Income-tax Act, the collection shall be made at the rate specified in that section and shall be increased in the case of a buyer, being a domestic company, by a surcharge calculated at the rate of 15 per cent of such collection." 7. Therefore, the surcharge can be collected only if the buyer is a domestic company. In the present case, the petitioner is admittedly not a company. Therefore, 10 per cent surcharge on income-tax cannot be collected, as sought to be done under condition No. 9 referred to earlier. Therefore, the surcharge can be collected only if the buyer is a domestic company. In the present case, the petitioner is admittedly not a company. Therefore, 10 per cent surcharge on income-tax cannot be collected, as sought to be done under condition No. 9 referred to earlier. The respondents are accordingly restrained from collecting any surcharge from persons other than the domestic companies. 8. The writ petition is accordingly allowed in part. Till the final pronouncement of the Supreme Court in the case referred to above, the petitioner will be liable to deposit income-tax in terms of condition No. 9 of their agreement. But, the respondents are restrained from collecting the surcharge thereon except in the case of domestic companies. No costs.