9911796707
TMI Blog1990 (12) TMI 306X X X X Extracts X X X X X X X X Extracts X X X X ..... he dealer received order from the Assessing Authority dated September 30, 1988, annexure P2, imposing sales tax, interest on the amount not paid up to September 30, 1988 and penalty. The tax was imposed not on the basis of returns filed by the assessee but on the basis of the notification dated 19th October, 1988, copy of which is annexure P1, by which the Haryana General Sales Tax Rules, 1975, framed under the Act (for short "the Rules"), were amended and Chapter 5-A was inserted, whereunder rule 39-A(1) provided for payment of lump sum amount in lieu of sales tax with reference to section 26 of the Act. The assessee came to this Court to challenge the vires of section 26 of the Act as also of rule 39-A of the Rules, and on this basis cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he manner prescribed, pay on the total value of a works contract being executed by him, a sum at such interval and in such manner, as may be prescribed, calculated at such rate not exceeding ten percentum, as the State Government may, keeping in view the nature and class of the works contract and subject to such conditions, by notification, specify: Provided that a contractor exercising option under this sub-section shall not be entitled to make purchase of any goods without payment of tax on the authority of his registration certificate for use in the execution of the works contract nor shall he be entitled to make adjustment or claim of refund of tax paid at any preceding stage, or deduct turnover of purchase of such goods: Provided fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6(2), the words "contractor exercising option" in the first proviso and the words "option once exercised shall not be revoked" in second proviso to section 26(2), and the words "contractor exercising option so long as the option remains in force", in section 26(3) clearly go to indicate that as and when rules are made, it would be open to the assessee to opt for the payment of lump sum instead of on the basis of return, and if he does not opt for the payment of lump sum by way of composition, then he would not be governed by that rule and would be governed by the provisions of section 6 of the Act for imposition of tax on the basis of return. Therefore, if a dealer is prepared to accept the concession, he may do so and in case he does not w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iln of capacity of 28 ghoris A Rs. 54,000 or more of kachi bricks. 2 Brick-kiln of capacity of 22 to 27 B Rs. 45,000 ghoris of kachi bricks. 3 Brick-kiln of capacity of below 22 C Rs. 36,000 ghoris of kachi bricks. 4 Brick-kiln not fired during the D Rs. 10,000 year in which stock in and outside the kiln as on the 1st April, does not exceed five lakh of bricks of all categories. ---------------------------------------------------------------------- Explanation.-1.......................... 2............................" We have already dealt with section 26 of the Act. That gives an option to the assessee to pay tax in lump sum. The State Government has no power by way of delegated legislation to impose lump sum tax in lieu of tax pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It may be that the President of the association of brick-kiln owners requested the State Government for framing rules for payment of lump sum but such a request cannot be considered as an option of each assessee. After State Government makes provision for lump sum payment it will be open to each dealer to opt for it and this would be a question of fact in each case and we decline to go into this question, and is left open to be gone into by the Assessing and the Appellate Authorities under the Act. Here, we are only concerned with the question whether rule 39-A of the Rules goes beyond the provision of section 26 of the Act and if it does, to what extent the provision of rule 39-A of the Rules deserves to be struck down if it cannot be cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 6 or rule 39-A and rule 39-A cannot be imposed on an unwilling assessee if he likes to be governed by section 6 of the Act. There can be no doubt that section 26 was enacted for the benefit of certain assessees but that would be applicable only if an assessee opts to be governed by the rules framed pursuant to section 26. Section 26 in terms provides that it will be the option of the assessee and therefore rule 39-A which has been framed pursuant to section 26, if it goes beyond section 26 it would clearly be ultra vires the provisions of the section. In case, we reasonably construe section 26 and rule 39-A then it can be clearly understood that rule 39-A is subject to the provisions of section 26. On a consideration of the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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