TMI Blog2004 (5) TMI 536X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. The petitioner-firm had purchased papers from the registered dealers for use in execution of works contract and the petitioner had used form A accordingly. These forms were collected from the department. Subsequently, the department came up with the plea that in view of the provisions of rule 19(2) of the Assam General Sales Tax Rules, 1993, the petitioner is not eligible/ entitled to use form A for purchase of goods used for the purpose of execution of works contract. Hence, the reassessment. 2.. The petitioner has challenged the order of reassessment and penalty on the various grounds mentioned in the writ petition. 3.. The petitioner has also challenged the constitutional validity of rule 19(2). Sub-rule (2) of rule 19, i.e. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich reads as follows: "(e) in respect of any transfer of property in goods (whether as goods or any other form) involved in a works contract of the nature specified in Schedule VI, at the rate or rates specified in that Schedule; and ..............." 7. A conjoint reading of the provisions of section 8(1)(e) and section 2(33)(ii) of the Act it is crystal clear that the transfer of goods involved in the execution of a works contract has been deemed to be "sale" of those goods. 8.. There is no dispute at the Bar that the scheme of form A is that intermediary sales between the two registered dealers are effected without charging of tax in respect of goods specified in Schedule III to the Act. Further, the purpose for which form A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st End Dwelling Co. Ltd. v. Finsbury Borough Council [1952] AC 109 said (at page 132): 'If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it.' In State of Bombay v. Pandurang Vinayak [1953] SCR 773, this Court held (at page 778) while approving the above passage of Lord Asquith: 'When a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n engaged in the works contract are to pay 8 per cent tax at the time of purchase of such goods as they are not allowed to use form A and subsequently, on the execution of the works contract, they are to pay another 8 per cent. Thus, they are to pay total 16 per cent tax on such goods. Article 14 does not debar classification of dealers under the taxation laws provided the classification are reasonable. In view of the decisions of the apex Court in the case of Maneka Gandhi v. Union of India (1978) 1 SCC 248, Ramana Dayaram Shetty v. International Airport Authority of India (1979) 3 SCC 489 and Ajay Hasia's case (1981) 1 SCC 722, it is well-settled that the provisions of articles 14 and 19 of the Constitution also implies/available against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Assam General Sales Tax (Amendment) Rules, 1999 with effect from January 19, 2000. It is, therefore, submitted that this was done by the State Government when the fallacy was brought home. The fact that the rules are no more in the statute book is not disputed. 13.. In view of the aforesaid discussion, we hold that the provisions of rule 19(2) is ultra vires to the constitutional provision of clause (29A)(b) of article 366. It is also beyond the rule-making authority under section 72 of the Act and, as such, the provisions are not enforceable. We, therefore, strike down the same as ultra vires and void. 14.. The petitioner has also challenged the order of reassessment dated April 13, 1999, on the ground that the reassessment was in vi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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