WP(C) 5475/2009 BEFORE THE HON’BLE MR JUSTICE U.B.SAHA 1. The instant writ petition is filed by the petitioner, M/s Bharat Press, a partnership firm, through its Managing Partner, namely, Sri Pabitra Jiban Baru ah, for quashing/ setting aside the impugned orders dated 2.4.2009 and 27.4.200 9 ( Annexure-F & H to the writ petition respectively) issued by the Deputy Secre tary to the Govt. of Assam, Election Department and letter dated 23.9.2009 ( Ann exure-M to the writ petition) issued by the Under Secretary to the Govt. of Assa m, Election Department denying the exemption to the petitioner from paying the V alue Added Tax ( in short VAT) on printing of Compendium, Hand Books, Manual etc ( altogether nine printing items) in connection with General Elections to the L ok Sabha, 2009. 2. The Deputy Secretary to the Govt of Assam issued a short tender notice o n 2.2.2009 for printing the aforesaid printing items and the tender offered by t he petitioner was accepted. Accordingly, the petitioner has done the printing wo rks and submitted the bill(s). According to the petitioner, the aforesaid print ing items fall within the definition of books, periodicals and journals in term s of Entry at Sl. No.5 of the First Schedule to the Assam Value Added Act, 2003 ( hereinafter referred to for short as ’the Act 2003’) which are exempted from payment of VAT. But while making payment of the bill(s) of the petitioner, the r espondent No. 3 vide his letter dated 2.4.2009 ( Annexure-F) informed the petiti oner that the petitioner is to pay VAT, though the aforesaid materials are not t axable, rather exempted from the tax liability, even as per the Taxing authority . Thereafter, although the petitioner vide letter dated 3.4.2009 inform the resp ondent No.3 that as per first schedule under Section -9 of the Act, 2003, the p rinting books are exempted from payment of VAT, the respondent No. 3 vide impu gned order dated 27.4.2009 ( Annexure-H) informed the petitioner that the paymen t of the bill of the petitioner will be made subject to the deduction of VAT. T he petitioner then sought clarification on rate of tax on the item Hand Books of Election Procedures and the Taxing authority, the Commissioner of Taxes, Ass am, the Respondent No.5 vide his order dated 28.5.2009 ( Annexure-J to the writ petition) held that on physical verification of the specimen copies, it is seen that these are bound book with cover and as per entry at Sl No 5 of the First S chedule, books, periodicals and journals are exempted from tax. Hence, it was cl arified that the above mentioned books are exempted from payment of tax as per Entry at Sl. No. 5 of the First Schedule. Although the said clarification of the taxing authority was furnished by the petitioner, the respondent No.4 vide impu gned letter dated 23.9.2009 informed the petitioner that the Finance (Taxation ) Department had not agreed to the request of the petitioner and turned down the same for non-deduction of VAT from the bill(s) of the petitioner submitted for printing of Hand Book etc. in connection with the General Election to Lok Sabha, 2009. Being aggrieved by the actions of the respondents, the petitioner has fil ed the instant writ petition. 3. Heard Mrs. A. Hazarika, the learned Counsel for the petitioner as well a s Mr. D. Saikia, the learned Standing counsel for the Finance Department. 4. As agreed to by the learned Counsel for the parties and considering the nature of the case, the writ petition is taken up for final disposal at this sta ge. 5. The main grievance of the petitioner is that though the printing of comp endium, hand books, manuals etc. are not taxable and come within the purview of VAT in view of Section 9 read with Entry at Sl. No. 5 of the first schedule of the Act, 2003, the respondent No. 4 turns down the prayer of the petitioner f or non-deduction of VAT @ 4% from the bill(s) of the petitioner as sought for by its letter dated 3.4.2009 (Annexure-G to the writ petition) considering the su pply of the aforesaid printing materials on works contract. 6. Mrs Hazarika, learned Counsel for the petitioner while urging for the r elief sought for contended that the impugned letter dated 23.9.09 (Annexure-M) h as been issued in violation of the order of the Commissioner of Taxes, Assam, th e respondent No.5 herein, dated 28.5.2009 ( Annexure-J) on an application under Section 105 of the Act, 2003 wherein the taxing authority clarified that the materials supplied by the petitioner were exempted in view of Entry at Sl. No. 5 of the first schedule of the Act, 2003 and any administrative authority whateve r higher position he holds including the respondent No.4, has no power to alter the same, rather he is bound to be guided by the said decision being it is the t axing authority who can only clarify which material comes within the purview of the tax under the statute. 7. She further submits that the materials supplied by the petitioner are n ot mere printing materials, those are bound printing books with cover and the said work is nothing but a supply simplicitor which do not come within descript ion of works contract as prescribed in 6th Schedule of the Act, 2003. Supply o f fixing or installation or fitting fixing of installation goods would only come within the purview of the works contract, not the supply simplicitor. 8. She again urges that the respondent No.5 though did not file any affid avit in opposition, but the respondent No.6, the Commissioner and Secretary, Fin ance by way of filing his affidavit in opposition though admitted that compendi um, hand books manual etc. have been clarified by the Commissioner of Taxes vid e his order dated 28.5.2009 as exempted items as per entry at Sl. No. 5 of the F irst Schedule to the Act, 2003, but contended that the said clarification is i n relation to sale of items and the petitioner is liable to pay sale tax @ 12.5% as per entry at Sl. No. 2 of the Fifth Schedule to the Act, 2003 on the taxabl e turnover or alternatively, @4% on the total turnover if the petitioner has th e permission under the composition scheme, which is not tenable being the order was for printing of compendium, hand books, manual etc. More so, when the same is exempted as per Entry at Sl. No. 5 of the first schedule to the Act, 2003, the letter dated 23.9.2009 issued by the respondent No.4 is also without jurisdi ction and thus liable to be quashed. 9. Mrs. Hazarika further contended that the works in question essentially f all within the definition of books, periodicals and journals and the respondent No.5 rightly exempted those materials from the purview of the VAT in terms of E ntry at Sl. No.5 of the first schedule of the Act, 2003 as the petitioner while quoting the rate in its bid excluded the VAT. 10. Mr. D. Saikia, learned standing counsel for the respondents 5 and 6 su bmits that admittedly the printing of compendium, hand books, manuals etc. are n ot taxable in view of the clarification of the respondent No. 5, the taxing auth ority vide Annexure-J wherein the respondent No. 5 specifically stated that the petitioner submitted the specimen copies of : 1. Model Code of Conduct for the Guidance of Political Parties and candidat es 2. Hand Book for Counting Agents 3. Hand Book for Polling Agents 4. Electronic Voting Machine Manual 5. Hand Book for Returning Officers 6. Compendium of Instructions on Conduct of Elections 7. Hand Book for Presiding Officers and on physical verification of the specimen copies, it was held that those wer e bound books with cover which were exempted from tax as per entry at Sl. No. 5 of the First Schedule, he contended. He further submits that though the materia ls supplied by the petitioner is not taxable, but the respondent No.4 vide his letter dated 23.09.2009 informed the petitioner that the Finance (Taxation) Depa rtment had not agreed to the request of the petitioner and turned down the same for non-deduction of VAT from the bill(s) submitted by the petitioner for printi ng Hand Book etc. in connection with the General Election to Lok Sabha, 2009. 11. Mr. Saikia while on the one way supporting the clarification of the res pondent No.5, on the other way placed reliance on Annexure-1 to the affidavit in opposition filed by the respondent No.6, wherein it is stated that it appears from your endorsement dated 4.8.2009 at page 22/N of your file No. ELE.117/2008 /pt that the rates for printing books for election procedure, as quoted by the d ealer, are inclusive of VAT. The same is, therefore, to be deducted from the bil ls . 12. While making submission, the learned Counsel for the parties have referr ed to the provisions of Section-9 of the Act, 2003 and the Entry at Sl. No.5 of the First Schedule, which are reproduced as under: 9. Exemptions and zero rating-(1) The scale of goods listed in the First Schedul e shall be exempted from tax subject to conditions and exceptions, if any set th erein. (2) The sales of goods in the course of export out of the territory of Indi a falling within the scope of Section 5 of the Central Sales Tax Act, 1956 shall be zero-rated. (3) Any sale of goods made by a registered dealer from a Domestic Tariff Are a (DTA) to a unit located in a Special Economic Zone ( SEZ) shall be zero-rated. (4) Any sale of goods made by a registered dealer from a Domestic Tariff Are a (DTA) to an Export Oriented Unit (EOU) shall be zero rated. (5) Any Sale of goods made by a unit located in a Special Economic Zone (SEZ ) or an Export Oriented Unit (EOU) to another unit located in another Special Ec onomic Zone(SEZ) or to another export oriented unit, shall be exempt from paymen t of tax. First Schedule List of exempted goods Sl. No. Description of goods 1. 2. 3. 4. 5 Books, periodicals and journals. 13. Having heard the learned Counsel for the parties and on going through th e pleadings, the questions arise whether the contractee Election Department can supersede/over-ride the decision of the taxing authority like the respondent N o.5, the Commissioner of Taxes who is appointed for carrying out the purpose of the Act and whether the supply materials in question come within the purview of the works contract or are wholly exempted from the purview of VAT in view of the provisions of Section 9 read with Entry at Sl. No. 5 of the First schedule o f the Act, 2003. 14. On examination of Annexure-C to the writ petition, it is found that the transaction is in the nature of work order i.e. the petitioner was granted contr act for printing materials and it is in the nature of work contract cannot be ac cepted in view of the order of the Commissioner of Taxes, even if his stand is otherwise correct, as the order of the taxing authority in exercise of his quas i-judicial power will always prevail over the order of the administration/execut ive authorities, which would be evident from the decisions of the Apex Court. 15. In Orient Paper Mills Ltd. Vs. Union of India, 1970(3) SCC 76, the Apex Court while negating the contention of the learned Attorney General, inter a lia, that assessment proceedings are not of a quasi-judicial nature nor is the assessing authority a quasi-judicial authority, held that it is apparent from t he judgment referred to above and numerous other decisions of this Court deliver ed in respect of various taxation laws that the assessing authorities exercise quasi judicial functions and they have duty cast on them to act in a judicial an d independent manner. If their judgment is controlled by the directions given by the Collector it cannot be said to be their independent judgment in any sense of the word. An appeal then to the Collector becomes an empty formality. 16. In Commissioner of Sales Tax, U.P vs. Indra Industries, (2000) 9 SCC 66 , their Lordship taking note of Para-18 of the judgment in the case of Bengal Ir on Corpn. V. CTO, 1994 Supp(1) SCC 310 held in para-3 of the judgment that a ci rcular by the tax authorities is not binding on the courts. It is not binding on the assessee. However, the interpretation that is thereby placed by the taxing authority on the law is binding on that taxing authority. In other words, the t axing authority cannot be heard to advance an argument that is contrary to that interpretation (emphasis supplied). 17. It appears from the record that admittedly the taxing authority, the Com missioner of Taxes, the respondent No.5, in his order dated 28.5.2009 came to a conclusion that the materials supplied by the petitioner are bound books with co ver and as per Entry at Sl. No. 5 of the first schedule to the Act, 2003, those are exempted from VAT. When the taxing authority exercising his statutory power under Section 105 of the Act, 2003 is of the opinion that the supplied materials are not taxable, then whoever may be the authority higher in position is not en titled to set at naught the said decision of the taxing authority unless the sam e is quashed by the appropriate appellate authority or by a Court of law. 18. It is evident from the Entry at Sl. No. 5 of the first schedule to the A ct, 2003 that books, periodical journals are fully exempted from VAT. Therefore , whether the materials supplied by the petitioner would come within the item b ooks or not that can only be decided by the taxing authority, not anybody else whatever may be the position. 19. It is not understandable as to why the respondent No.4, the Under Secret ary to the Government of Assam, Election Department is asking for payment of ta x when the printing materials supplied by the petitioner are exempted by the st atue itself. The Finance Department or the borrowing Department should not flout the order of the Taxing Authority. 20. For the foregoing reasons and discussion, this Court is of the opinion that the petitioner is not supposed to pay the VAT against supply of the printin g materials to the Election Department in connection with General Elections to L ok Sabha, 2009. Consequently, the impugned orders dated 2.4.2009 and 27.4.2009(A nnexure-F and H respectively) are quashed and the letter dated 23.9.2009 ( Annex ure-Motor Vehicles Act, 1988) is also set aside. In the result, the Writ petitio n is allowed with no order as to costs. 21. As this order is passed in absence of the respondents 1 to 4, those resp ondents are at liberty to approach this Court either for modification or altera tion of this order, if so advised.