G.C.Bharuka, Jj.:-
(1) Although this case has been listed under the heading 'to be mentioned', with the consent of the parties it has been taken up for hearing and is being final disposed of alongwith other identical writ applications.
(2) In this application the petitioner is a retail licence vendor in country spirit which is alcoholic liquor for human consumption. He purchases the country spirit from the respondent whole seller. The writ application has been filed for a declaration, inter alia, that in terms of section 206c of the income - tax act, 1961 (in short'the act' hereinafter) the whole seller cannot collect any amount as income - tax because he is an 'individual' and thus does not fall within the purview of the definition "seller" as contained in clause (b) of the explanation appended to section 206c of the act. Alternatively it has been submitted that, in any view of the matter, the deduction of any amount by way of income - tax can be only on the basis of cost price of the country spirit purchased by the petitioner.
(3) So far as the alternative prayer is concerned, it has already been held by us in c. W. J. C. No. 7278 of 1992 disposed of on 9*9 - 1992 ramji prasad sahu v. Union of india that income tax can be collected only with reference to cost price of the countty spirit.
(4) So far as the first relief is concerned, mr rastogi, learned counsel appearing on behalf of the income - tax department, has fairlv conceded that in view of the definition of "seller" referred to above, if the status of the whole seller for the purpose of the income tax act is that of "individual" or "hindu undivided family" or "association of persons", then such whole seller cannot collect any amount as income tax tinder section 206c of the act.
(5) Accordingly, in view of the assertions made by the petitioner in the writ application, the submissions of the parties, at the bar and the relevant statutory provisions, we are of the opinion that if the status of the respondent whole seller in respect of the transaction in question is that of individual for the purpose of income tax proceedings under the act, then it will not be permissible on his part to collect any amount as income tax under section 206c of the act. Since the respondent whole seller has not appeared to disclose his status, we are enable to record any finding in this regard. It will thus be open for the whole seller to decide of his statutory obligation under the provisions in question and act accordingly. If he proceeds to act on a wrong assumption of his status, it will be open for the department to take such action against him as may be permissible in law.
(6) We may further make it clear that this order is being passed keeping in view the amendments made by reason of finance act, 1992 in terms whereof section 44ac since has been deleted and section 206c has been substituted with effect from 1 - 4 - 1992.
(7) It goes without saying that the matter relating to collection of income tax prior to the periods 1 - 4 - 1992 shall be governed by the provisions as those stood at the relevant time subject, however to the judgment of the supreme court in bihar excise vendors association and another v. Union of india and others (t. P. No. 42/1989) , wherein vires of the provisions of section 44ac and 206c is pending adjudication.
(8) We also direct that the amount, if any, deposited by the petitioner (s) pursuant to the interim order passed by this court shall be duly adjusted by the income - tax department after the final income tax assessment is made in this regard.
(9) This writ application is, thus, disposed of.