JUDGMENT
S.B. Sinha, J.
1. These three writ applications involving common questions of law were heard together and are being disposed of by this common judgment.
2. The petitioners in these writ applications, inter alia, challenged the vires of the Constitution (Forty-sixth Amendment) Act, 1982, as also the provisions contained in Section 25-A of the Bihar Finance Act, 1981, as amended by the Bihar Finance Act, 1984.
3. In these writ applications, the petitioners, inter alia, contend that as they entered into an agreement with their respective principals for execution of the works contract prior to the corning into force of the Bihar Finance Act, 1984, i.e., prior to 1st April, 1984, no sales tax is payable in relation to the supplies made under the said contract, and in any event, they arc not liable to pay any tax whatsoever in view of Section 64-A of the Sale of Goods Act, 1930.
4. In C.W.J.C. No. 2655 of 1988 (R), a counter-affidavit has been filed on behalf of the South Eastern Railway Administration, wherein in paragraph 9 thereof, it has categorically been stated that recovery had been made from the outstanding bill of the petitioner thereto only after 1st April, 1984.
5. Before proceeding further, it may be mentioned that the Supreme Court of India in Builders Association of India v. Union of India reported in [1989] 73 STC 370 ; 1989 BLT 151, upheld the constitutional validity of Constitution (Forty-sixth Amendment) Act. Thereafter, a Division Bench of this Court in Jamshedpur Contractors’ Association v. State of Bihar, in C.W.J.C. No. 1034 of 1984 (R) and analogous cases, disposed of on 2nd August, 1989, reported in [1989] 75 STC 132 and C.I.O. Tyres Private Ltd. v. State of Bihar in C.W.J.C. No. 2178 of 1988 (R), held that Clause (a) of Sub-section (1) of Section 21 of the Bihar Finance Act as also Rule 13-A of the Bihar Sales Tax Rules, 1983, are ultra vires.
6. A Division Bench of this Court in the aforementioned writ applications held that the assessing authority would be bound to take into consideration the decision of the Supreme Court in Builders Association’s case [1989] 73 STC 370 ; 1989 BLT 151, as also a decision of the Supreme Court in N.M. Goel & Co. v. Sales Tax Officer reported in [1989] 72 STC 368 (SC) ; AIR 1989 SC 285, and the aforementioned writ applications and proceed to conclude the assessment proceeding, in accordance with law and keeping in view of the ratio of the aforementioned cases.
7. Section 64-A of the Sale of Goods Act reads as follows :
“Unless a different intention appears from the terms of the contract, in the event of any tax of the nature described in Sub-section (2) being imposed, increased, decreased or remitted in respect of any goods after the making of any contract for the sale or purchase of such goods without stipulation as to the payment of tax where tax was not chargeable at the lime of the making of the contract, or for the sale or purchase of such goods tax-paid where tax was chargeable at that time,–
(a) if such imposition or increase so takes effect that the tax or increased tax, as the case may be, or any part of such tax is paid or is payable, the seller may add so much to the contract price as will be equivalent to the amount paid or payable in respect of such tax or increase of tax, and he shall be entitled to be paid and to sue for and recover such addition ; and
(b) if such decrease or remission so takes effect that the decreased tax only, or no tax, as the case may be, is paid or is payable, the buyer may deduct so much from the contract price as will be equivalent to the decrease of tax or remitted lax, and he shall not be liable to pay, or be sued for, or in respect of such deduction.”
8. From a perusal of the said provision, it would thus be evident that in terms thereof a contractor can claim reimbursement in relation to the payment of tax on goods supplied by him to his principals in the event, there is no condition in the contract to the contrary.
9. It is, therefore, clear that this Court, in exercise of its writ jurisdiction, cannot decide in each case as to whether the contractor is liable to pay the tax or its principal is liable in terms of the aforementioned provision.
10. The petitioners have undertaken works contract and in execution thereof had been supplying goods to their principal and thus are liable to pay sales tax, in accordance with the provisions of the Bihar Finance Act, 1981, as amended in the year, 1984, and the Rules framed thereunder.
11. There cannot be any doubt that the provisions of the aforementioned Act and the Rules framed thereunder having come into force from 1st April, 1984, tax would be payable in relation to the goods supplied only if the taxable event occurred on or after the aforementioned dale irrespective of the dale when the petitioners entered into contract with their principals.
12. It is now well-settled that so far as liability to pay the sales tax is concerned, the same primarily is upon the dealer.
13. In terms of the provisions of the Bihar Finance Act, 1981, and the Rules framed thereunder, a registered dealer is entitled to recover the tax from his buyer and in terms of Section 64-A of the Sale of Goods Act, from its principal unless there exists a contract to the contrary.
14. The right of such a dealer to reimburse himself, therefore, is a mailer of contract. Section 64-A of the Sale of Goods Act merely thus provides for an implied condition of a contract relating to or involving supply of goods.
15. Such a contract/implied contract can be enforced in accordance with the provisions of the said contract only, namely, either by taking recourse to the arbitration agreement entered into by and between the parties thereto if there be any, or by filing a suit, in the event, the principal refuses to fulfil his part of promise in relation thereto.
16. Mr. Jalan, the learned counsel appearing on behalf of the petitioner in C.W.J.C. No. 78 of 1989 (R), referred to a circular which is contained in annexure-2 to the said writ application and submitted that even the Commissioner of Sales Tax was not clear in his mind as to who would be liable to pay tax in view of the aforementioned provision contained in Section 64-A of the Sale of Goods Act.
17. Mr. Gadodia, the learned Government Advocate appearing on behalf of the respondents, however, categorically stated before us that the said circular was issued only for the guidance of the assessing authorities and in view of the pronouncement of the Supreme Court of India in Builders Association’s case [1989] 73 STC 370 ; 1989 BLT 151, and this Court in above referred cases, the assessing authority would be bound by the said decisions referred to hereinbefore, and not by the aforementioned circular.
18. In view of the fact that the petitioners of these writ applications cannot invoke our writ jurisdiction for enforcing the liabilities of their principals in terms of Section 64-A of the Sale of Goods Act, as the same involves enquiry into a disputed question of fact as also in view of the fact that such an implied term of the contract may be enforced in another forum, in our opinion, these writ applications are not maintainable.
19. These petitions are, therefore, dismissed with the observations made hereinbefore. But, in the facts and circumstances of the case, there will be no order as to costs.
B.P. Singh, J.
20. I agree.