WP(C) 5854/2010 BEFORE HON’BLE THE CHIEF JUSTICE MR. A. K. GOEL THE HON’BLE MR. JUSTICE C. R. SARMA Goel, CJ. This petition seeks declaration that Sections 11 and 69 of the Assam Value Added Tax Act, 2003 (the Act) and Rule 10 of the Assam Value Added Tax Rules, 2005 ar e void and also seeks quashing of assessment order dated 06.09.2010 (Annexure-6 to the writ petition) passed by the Assistant Commissioner of Taxes, Central VAT Audit Cell, Guwahati (respondent No.3). Case of the petitioner is that it is engaged in execution of works contracts for which it is assessed to tax under the provisions of the Act and the Rules. For the assessment year 2005-06, order of assessment dated 4.12.2007 was passed enti tling the petitioner to refund of Rs.2.15 crores but the assessment was reopened vide notice dated 19.03.2009 and on re-assessment the impugned order dated 06.0 9.2010 has been passed, creating a huge demand from the petitioner which was ill egal and arbitrary. The writ petition has been opposed by filing a reply by the Additional Commissio ner of Taxes, Guwahati, resisting the contentions raised and pointing out that a lternative remedy of appeal was available against the order of assessment. Secti on 11 of the Act provides for measure of the taxable turnover. The identical pro vision has been upheld by the Hon’ble Supreme Court in Gannon Dunkerly’s case [( 1993)1 SCC 364, Pp.45 to 47]. Re-assessment was permissible under Section 40 of the Act when there was escapement of tax as in the present case, in the manner m entioned in the notice of re-assessment. We have heard Mr. N. Venkatraman, learned counsel appearing for the petitioner, and Mr. K. N. Choudhury, learned Additional Advocate General, Assam, appearing f or the respondents. Learned counsel for the petitioner has raised two contentions. First relates to validity of Section 69(2) of the Act to the extent of providing for laying down the conditions for the contractor not liable to pay tax again when such tax has been already paid by the sub-contractor and Rule 39, according to which the con tractor was required to produce documentary evidence of payment of tax by the su b-contractor with a declaration from the sub-contractor. The second contention i s that the impugned order was arbitrary and thus violative of Article 14 of the Constitution insofar as proviso to Section 11 has been involved thereby making a ddition to the declared value of turnover even when the contractor has maintaine d proper accounts. It is submitted that it was wrongly assumed that the contract or had not maintained accounts merely because a particular voucher was not produ ced or because the establishment charges on procurement and supply of material a nd those referable to labour and other services had not been apportioned with a view to clearly indicate the cost of the material which alone was exigible to va lue added tax under Entry 54 of List II of Seventh Schedule to the Constitution read with Article 366(29A). Reliance has been placed on State of AP and others v s. Larsen & Toubro Limited and others, [2008] 17 VST 1 (SC) and Media Communicat ions vs. Govt. of Andhra Pradesh [1997] 105 STC 227 (AP-HC). Learned counsel for the State has submitted that Section 69(2) and Rule 39(1) ar e machinery provisions and provide for the manner in which the levy of tax was t o be effectuated when the contractor as well as sub-contractor were engaged in e xecuting works contract. It was further submitted that validity of assessment or der could be gone into in departmental appeal as it involved going into the ques tion whether the proviso to Section 11 could be involved in the circumstances of the present case. We have considered the rival submissions. We are of the view that no interferenc e is called for under Article 226 of the Constitution, at this stage. As regards the issue of validity of Rule 39 referable to Section 69(2) is concer ned, we do not find any illegally therein. The relevant provisions of Section 69 (2) and Rule 39(1) are as under: 69. Liability of contractor and sub-contractor to tax- (1) & & & & & & (2) If the contractor proves in the prescribed manner that the tax has been paid by the sub-contractor on the taxable turnover of the goods involved in the execution of the works contract, executed by such sub-contractor, the contractor shall not be liable to pay tax again on the taxable turnover of such goods. 39. Liability of contractor or sub-contractor to tax - (1) A contractor shal l not be liable to pay tax under sub-section (2) of Section 69, if he produces d ocumentary evidence as to the payment of tax on the taxable turnover of the good s involved in execution of works contract, by the sub-contractor along with a de claration from such sub-contractor to this effect. The above provisions only require production of documentary evidence of payment of tax with a declaration from the sub-contractor. There can be no difficulty in giving documentary evidence of tax or a declaration from the sub-contractor. No doubt the format of declaration has not been prescribed but in absence thereof, declaration from sub-contractor giving relevant particulars to connect the paym ent of tax to the turnover can certainly be furnished. The judgments relied upon do not help the petitioner. The judgment of the Hon’ble Supreme Court in State of AP and others vs. Larsen & Toubro Limited and others, [2008] 17 VST 1 (SC) has no applicability to the pre sent case as the observations relied upon are in respect of a provision for tax being levied twice in respect of same transactions which is not the case here. A s regards the judgment of Media Communications vs. Govt. of Andhra Pradesh [1997 ] 105 STC 227 (AP-HC) observing that if sub-contractor was registrable there was no purpose in requiring the contractor to prove that turnover of sub-contractor was included in his return and such information could be seen from the record o f the tax return, we are of the view that the said observation could not be read as laying down that legislature had no competence to require furnishing proof o f payment of tax and declaration by sub-contractor where contractor pleads that he was not liable to pay tax on that ground. As regards the plea of arbitrariness of the order of assessment, we are of the v iew that the petitioner has the alternative remedy of raising all contentions ag ainst the said order before the concerned departmental authority in a statutory appeal. Thus, no ground is made out for interference in exercise of writ jurisdiction. T he writ petition is dismissed. It is made clear that this order will not debar the petitioner from filing statu tory appeal, in accordance with law.