STATE OF TRIPURA Vs. SHEKHAR CHANDRA PODDER

JUDGEMENT

(1.) HEARD Dr. A.K. Saraf, learned senior counsel assisted by Mr. K. Roy, learned counsel along with Mr. N.C. Pal, learned Government Advocate appearing for the applicants as well as Mr. Somik Deb, learned counsel appearing for the writ petitioner -respondent. The Revenue by this application filed under article 226 of the Constitution of India read with sub -rule (2) of rule 4 of Chapter V -A of the Gauhati High Court Rules, as followed, pressed for vacation/modification of the interim order dated March 22, 2013 passed in W.P. (C) No. 72 of 2013 whereunder the following interim measures were provided:

(2.) DR . Saraf, learned senior counsel assisted by Mr. K. Roy, learned counsel along with Mr. N.C. Pal, learned Government Advocate appearing for the Revenue has submitted that the said interim order has been obtained by exercise of fraud and suppression of the material fact inasmuch as it has completely suppressed that the writ petitioner has filed another writ petition being W.P. (C) No. 440 of 2012 by challenging the memorandum dated June 25/30, 2005, the notification dated September 21, 2011, the notification dated November 16, 2011 and the notification dated August 1, 2012. It has been deliberately suppressed that along with the said writ petition, one application for interim measure by way of restraining the Revenue -respondents from acting in furtherance of the said impugned memoranda/notifications had been filed but on the face of the resistance by the Revenue -respondents and on due consideration this court did not pass any restraint order against the impugned memoranda/notifications as prayed. The said petition for interim order being C.M. Appl. No. 359 of 2012 in W.P. (C) No. 440 of 2012 was disposed of by an order dated September 18, 2012 with the following observation and direction:

(3.) DR . Saraf, learned senior counsel assisted by Mr. Roy, learned counsel appearing for the Revenue, has contended further that the similar prayers have been replicated in the present writ petition along with some additional prayers but the nature and contour of the writ petition hardly have any distinguishable variation. Dr. Saraf, learned senior counsel has referred the prayers made in the previous writ petition being W.P.(C) No. 440 of 2012 for making comparison with the prayers made in the present writ petition being W.P. (C) No. 72 of 2013 and contends that except some very insignificant additional reliefs the challenge remains the same. He has further contended that the petitioner has deliberately suppressed the pendency of an identical writ petition on the same subject -matter and between the same parties being W.P. (C) No. 440 of 2012 and the interim order dated September 18, 2012 as passed in C.M. Appl. No. 359 of 2012 in W.P. (C) No. 440 of 2012 with unmasked purpose of misleading this court and obtaining the interim order by such suppression and mis -representation of the relevant fact. Had the said interim order dated September 18, 2012 been placed before this court before the order dated March 22, 2013 was passed in W.P. (C) No. 72 of 2013, this court would not have passed the interim order in favour of the petitioner in conflict to its previous order. He has also submitted that after passing the said interim order, dated September 18, 2012, the Revenue -respondents has published the memorandum No. F.I -7(11) -TAX/87/PART -II dated January 8, 2013 whereby it has been provided that the tax would be deducted against the works contract at the source. By the said memorandum dated January 8, 2013 various charges towards labour and services have been sub -categorized on which the deduction would be made. It has also been clarified in the said memorandum dated January 8, 2013 that "In cases where the amount of charges towards labour, services and other like charges in such contract are not ascertainable from the terms and conditions of the contract for the purpose of determining turnover of goods in which transfer of property in goods has taken place, the amount of such charges shall be calculated at the percentage prescribed in rule 7A for determining taxable turnover of running bills for deduction of tax at source at eight per cent. The applicability of tax deduction at source is at the time of making payments irrespective of the date of entering into the contract".