Sri Lakshminarayana Contractors vs Government of Andhra Pradesh and Others

S.V. Maruthi, J.—The relief claimed in this writ petition is for a declaration declaring the action of the respondents in seeking to deduct the sales tax at 4 per cent from the bills payable to the petitioner for the contract work executed by him, namely, the earth work excavation and formation of embankment from km. 100 to 101 of Srisailam Left Branch Canal under L.S. Agreement No. 6 SE/95-96 dated December 8, 1995 as illegal, arbitrary, unjust and without jurisdiction.

The third respondent awarded the contract of earth work excavation and formation of embankment from km. 100 to 101 of Srisailam Left Branch Canal to the petitioner. An L.S. Agreement No. 6 SE/95-96 dated December 8, 1995 was executed between the petitioner and the third respondent. As per the same, the value of the work to be done is Rs. 18,85,867,50. The nature of the contract work is only excavation of earth for the purpose of forming a canal and to put the removed mud on either side. While so the respondents applying Sections 5F and 5H of the Andhra Pradesh General Sales Tax Act, 1957 sought to deduct the tax at 4 per cent from the amount payable to the petitioner. Aggrieved by the same, the present writ petition is filed.

The issue now is covered by number of judgments. We are referring to one of the judgments. In Writ Petition No. 11736 of 1998, Sohan Engineering Constructions Vs. Commissioner of Commercial Taxes and Others, a division Bench consisting of the honourable Sri Justice P. Venkatarama Reddi and the honourable Sri Justice A. Hanumanthu by their judgment dated April 28, 1998 held that :

"Part of the work relates to earth work excavation. If no earth is brought from outside source, we direct that no tax shall be collected at source."

At this stage it is necessary to refer to the counter filed by the respondents. In the counter it is stated that the petitioner was awarded with the earth work excavation and forming embankment from Km. 100 to 101 of Srisailam Left Branch Canal under Agreement No. 6SE/95-96 dated December 18, 1995. The work is purely excavation of earth and it does not involve transfer of property for a significant amount. Since the respondents have not disputed that the only work awarded to the petitioner is earth work excavation, in view of the judgment referred to above, no tax shall be collected at source.

The writ petition is accordingly allowed. No costs.

That rule nisi has been made absolute as above.

Witness the honourable Mr. Umesh Chandra Banerjee, Chief Justice on this Friday the seventh day of August one thousand nine hundred and ninety-eight.