IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.9458 of 2010 ===================================================== 1. M/s Ramji Mishra and Co., through its acting partner Sri Ramji Mishra s/o Late Ram Kishun Mishra R/o Vill.- Sirisia, P.O.- Sasamusa, P.S.+Distt.- Gopalganj Versus 1. The State of Bihar through Commissioner Commercial Taxes Bihar, Patna 2. The Executive Engineer, Building Construction Division, Gopalganj 3. The Executive Engineer, Building Construction Division, Siwan 4. The Executive Engineer, Building Construction Division, Chapra 5. Rural Works Department through Executive Engineer, Gopalganj 6. Public Health Engineering Department through Executive Engineer, Chapra 7. B.R. Ambedkar University through its Registrar, Muzaffarpur 8. Nagar Parishad, Siwan 9. The Treasury Officer, Gopalganj ==================================================== Appearance : For the Petitioner: Mr. Sanjay Kumar Pandey, Advocate Mr. Ashutosh Tripathi, Advocate Mr. Prabhaker Dwivedi, Advocate For the Respondents: Mr. Anjani Kumar, AAG-10 Mr. A.B. Sinha, Advocate Mr. Ravi Bhushan Verma, Advocate ==================================================== CORAM: HONOURABLE THE CHIEF JUSTICE And HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 2 4 06.04.2011 The petitioner in this petition filed under Article 226 of the Constitution is a Registered Dealer within the meaning of the Bihar Value Added Tax Act, 2005 (hereinafter referred to as “the Act of 2005”). The petitioner is a works contractor. He is aggrieved by the action of the respondent Nos. 4 to 9, the employers, in respect of deduction of 4% of the contractual amount towards Value Added Tax. According to the petitioner, the major part of the contractual amount constitutes labour charges and other charges which are not taxable under the Act of 2005. Nonetheless, a deduction has made at source from such amount which is not taxable. The petition is contested by the respondent No.1, the Commissioner of Commercial Taxes. It is stated that any excess amount deducted at source will be refunded to the dealer, once the assessment is completed. We do appreciate that part of the contractual amount being labour charges may not be taxable under the Act of 2005, however, how much of the contractual amount is labour charges and how much of it is taxable under the Act of 2005 is a matter of fact to be calculated in each case on the materials available on the record. This Court, in exercise of its power of judicial review under Article 226 of the Constitution, will not enter into such enquiry. The taxing authorities are amply empowered for such exercise. The petition under Article 226 of the Constitution should, therefore, not lie. It will be the duty of the Assessing Officer to properly calculate the amount which is not taxable under the Act of 2005; to 3 levy appropriate tax and to refund the amount of tax if paid/deducted in excess. For the aforesaid reason the petition is dismissed in limine. Bibhash ( R.M. Doshit, CJ.) (Jyoti Saran, J.)