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1996 DIGILAW 27 (GAU)

GAUHATI MUNICIPAL CORPORATION CONTRACTORS ASSOCIATION v. GAUHATI MUNICIPAL CORPORATION

1996-02-20

D.N.BARUAH

body1996
JUDGMENT D. N. BARUAH, J. - In this application under article 226 of the Constitution, petitioner-association challenges deduction of sales tax and forest royalty from the bills of the members of petitioner-association and also prays for issuance of appropriate writ or direction. 2. The facts for the purpose of disposal of this writ petition may be stated as follows : Petitioner is an association of contractors of Gauhati Municipal Corporation. This association was formed as far back in 1977 and it was registered with the Registrar of Societies, Assam, in the year 1978. All the members of petitioner-association are contractors doing contract works under Gauhati Municipal Corporation. Members of the petitioner-association used to do contractual jobs and huge amount thus became due to the members of petitioner-association. According to the petitioner-association in the year 1990 respondents sought to deduct forest royalty from the bills payable to the members of petitioner-association. The association, therefore, approached the respondents-authorities and brought to the notice that forest royalty could not be realised from the bills payable to them, inasmuch as, the members of the petitioner-association were not producers of materials supplied and used in the construction work. A meeting was held on June 13, 1990, between the representatives of association and the Commissioner of Gauhati Municipal Corporation and in the said meeting it was agreed, inter alia, that the respondent No. 1 would stop deduction of forest royalty from the bills payable to the contractors. However, the respondent No. 1 and its officers later on decided to deduct forest royalty from the bills of the members of petitioner-association in utter disregard to the assurance given by the Commissioner-respondent No. 1. Besides this the respondent had also decided to deduct sales tax at source from the bills of contractors though there was no written order passed by the respondent indicating their decision to deduct sales tax at source. Nevertheless deductions have been made from the bills payable to them. According to the petitioner-association, under the statutes and Rules the members of the petitioner-association were not liable to make payment of forest royalty and also no sales tax could be deducted at source. Nevertheless deductions have been made from the bills payable to them. According to the petitioner-association, under the statutes and Rules the members of the petitioner-association were not liable to make payment of forest royalty and also no sales tax could be deducted at source. Apart from deduction of sales tax at source, the petitioner-association contended that the sales tax itself could not be realised from the members of petitioner-association, inasmuch as, the sales tax were to be payable by the dealer only and the members of the petitioner-association not being a dealer the sales tax could not be realised from them. Being aggrieved, the petitioner-association approached this Court by filing the present writ petition. 3. Respondents Nos. 1 and 2 have filed affidavit-in-opposition. 4. I heard both sides. Mr. S. Sarma, counsel appearing on behalf of the petitioner and Mr. A. B. Choudhury, Standing Counsel appearing on behalf of the respondents. At the time of hearing Mr. Sarma did not press the first point regarding deduction of forest royalty as the respondents Nos. 1 and 2 in their affidavit-in-opposition had categorically stated that they agreed to stop deduction of forest royalty and accordingly there was no deduction of forest royalty. The main contention of Mr. Sarma in the present case is that sales tax could not be deducted at source as manner had been prescribed by the authorities concerned. In this connection Mr. Sarma has drawn my attention to a decision of this Court in Santosh Kumar Harlalka v. State of Assam reported in [1995] 99 STC 615; (1995) 2 GLR 95. In the said decision, this Court had the occasion to consider the legally of the authority to deduct sales tax at source. This Court in the said decision held that sales tax at source can be deducted at the rate and in the manner prescribed; since the rated and manner were not prescribed this Court held that the authority had no jurisdiction to deduct sales tax at source without first prescribing the rate and the manner. After the said judgment, law has been amendment by prescribing the rate. However, according to Mr. Sarma the manner has not been prescribed. Mr. Choudhury appearing for the respondent-corporation was not in a position to point out whether any manner has prescribed. After the said judgment, law has been amendment by prescribing the rate. However, according to Mr. Sarma the manner has not been prescribed. Mr. Choudhury appearing for the respondent-corporation was not in a position to point out whether any manner has prescribed. It is well-settled law that where a power is given to do certain thing in a certain way the thing must be done in that way or not at all. In section 27(b) of the Assam General Sales Tax Act the Legislature has fairly indicated that tax can be deducted at source not only on the basis of the prescribed rate but also in the manner. While making the said provision, definitely, the Legislature had in its mind certain manners. It is also an established principle of law that Legislature does not use any expression which is unnecessary and redundant. Taking the plain meaning from section 27(b) of the Act, it is abundantly clear that some manner regarding deducting of tax has to be prescribed. As this has not been done, in my opinion, no tax can deducted at source in the present facts and circumstances of the case. Accordingly, I set aside and quash the action of respondents deducting the sales tax at source from the bills payable to the members of the petitioner-association. However, I make it clear that the authority after prescribing the manner shall be at liberty to deduct tax at source. Considering the facts and circumstances of the case, I make no order as to costs. Petition allowed.