STATE OF RAJASTHAN Vs. SURESH KUMAR

JUDGEMENT

(1.) THE State of Rajasthan has filed this special appeal under section 18 of the Rajasthan High Court Ordinance, 1949, against the order of the learned single Judge dated August 24, 1993, whereby he has disposed of the writ petition on the basis of a single Bench decision of this Court rendered in Gopal Verma v. State (S. B. C. W. Petition No. 1977 of 1993) decided on May 10, 1993.

(2.) SINCE the aforesaid special appeal and the appeals mentioned in Schedule A raise a common issue, they are being disposed of by this common judgment.

(3.) SINCE the controversy was resolved in the aforesaid decision by the Supreme Court holding that the authority will not be entitled to deduct the tax at source and thereafter the Commercial Taxes Department, Rajasthan, also issued a circular to the effect that the provision to collect tax in relation to a works contract never existed on the statue but even then the tax was deducted and, therefore, the learned single Judge in Gopal Verma's case S. B. C. W. Petition No. 1977 of 1993 decided on May 10, 1993 ordered that the authorities are not entitled to recover the tax at source as the same has been stuck down. However, it was ordered that the department will be free to proceed in accordance with the provisions of law ignoring section 5 (3) of the Act and rule 29 (2) (i) of the Rules. However, it was also observed that whatever amount of tax has been deducted or recovered after 17th November, 1992, shall either be refunded or adjusted towards the tax liability. A Division Bench of this Court in State of Rajasthan v. M. E. S. Builders Association (D. B. C. Special Appeal No. 221 of 1993 decided on May 10, 1993), held that once the substantive provision of levy of tax has been declared ultra vires and tax is not at all leviable as a necessary consequence the provisions relating to recovery of such tax also cannot be put into operation unless there is any amendment.