:1: WP 4678/02 (A.S.) bgp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4678 OF 2002 M/s.B.T.Patil & Sons Belgaum (Construction) Pvt.Ltd. and anr. ..Petitioners Vs. State of Maharashtra & Ors. ..Respondents Mr.Y.S.Jahagirdar, Senior Advocate with Mr.N.V.Bandiwadekar for petitioners. Mr.V.A.Sonpal, AGP for respondent Nos. 1 to 3. Mr.Vijay Patil for respondent Nos.4 to 6. CORAM :- V.C.DAGA & S.J.KATHAWALLA,JJ. DATE :- 23RD JULY, 2010 P.C. Heard. Perused petition. 2. This petition is directed against the action of respondents whereby tax at source were deducted (“TDS” for short) under Maharashtra Sales Tax on Transfer of property in goods involved in the execution of Works Contracts (Re- enacted) (Amendments) Act,1999 (the Act) and Rules framed thereunder by the respondent-Employer from running bills paid to the petitioner from time to time 3. The deductions of TDS were made on the basis of the provisions of the Act and the Circular dated 14th March, 2000 (Exhibit-F-1) (Page 45). It appears that the petitioners had made representation to the Executive Engineer, Sangli requesting him not to deduct TDS from their running bills. The said representation was rejected under communication dated 20th January, 2001. This communication is a subject matter of challenge in the present petition. Needless to mention that the Trade Circular dated 13th April, 2000, :2: WP 4678/02 (A.S.) which is a basis of the communication dated 20th January, 2001 is not a subject matter of challenge in this petition. 4. Apart from the above, the assessment orders made under the provisions of the Act and Rules right from the year 1997-98 till 2000-01, referable to the period under contract, have also not been challenged. All of them have become final and conclusive. These assessment orders based on the Circular dated 13th April, 2000 have been accepted by the petitioners. The petitioners have also encashed refunds allowed in the assessment orders. 5. In the aforesaid view of the matter, the cause of action to proceed with the petition does not survive for two reasons. Firstly; that the assessment orders have become final and conclusive. The same are accepted by the petitioners without any demur. If the petition is allowed, then two orders running counter to each other shall be in the field. There cannot be two inconsistent orders in one litigation (see : Sheela wd/o Vijay Vs. Central Bank 1998(1) MH.L.J.928). Secondly, as stated the petitioners have accepted the assessment orders which have become final and conclusive based on the said Trade Circular dated 13th April, 2000. The said circular is not the subject matter of challenge in this petition. The acceptance of the assessment orders has resulted in acceptance of the circular. Under these circumstances, the adjudication of the issues involved in the petition would be nothing but an academic exercise. No positive relief can be granted in favour of the petitioners. In the circumstances, cause of action to proceed with the petition does not survive. Petition is thus liable to be dismissed. Needless to mention that on the fresh cause of action, it would be open for the petitioners to raise appropriate plea in this behalf. In the result, petition is dismissed. Rule is discharged. No order as to costs. (S.J.KATHAWALLA,J.) (V.C.DAGA,J.)