N.P.Singh, J.

1. This writ application has been filed on behalf of the petitioner questioning the validity of the Constitution (Forty-sixth Amendment) Act, 1982 (hereinafter referred to as "the 46th Amendment") by which Clause (29A) was inserted in Article 466 of the Constitution. The petitioner also sought a declaration that Rule 26A of the Bihar Sales Tax Rules, 1983 (hereinafter referred to as "the Rules") was ultra vires and as such no deduction under Sec. 25A of the Bihar Finance Act, 1981 (hereinafter referred to as "the Act"), can be made from the amount payable for execution of a works contract by the persons or authorities making such payment in respect of the contract in question.

2. The relevant part of Clause (29A) aforesaid which was introduced by the Forty-sixth Amendment in Article 466 of the Constitution is as follows :

" tax on the sale or purchase of goods includes-- (a) ..............................

(b) a tax on the transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract ;"

After the amendment aforesaid, different States amended the Acts relating to payment of tax on sale and purchase of goods to cover transfer of property in goods, whether as goods or in some other form involved in the execution of a works contract and for deduction of the amount of tax so payable by the person or authority making payment at the rate prescribed.

3. So far the Act with which we are concerned, Sec. 25A was introduced by the Bihar Finance Act, 1984. The relevant part of Sec. 25A is as follows :-

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"25A. Tax deductions from the billslinvoices for the works-contractors.-- (1) Notwithstanding anything contained in Sec. 26 every person making any payment or discharge of any liability on account of valuable consideration payable for the transfer of property in goods, whether as goods or in some other form, involved in the execution of works contract shall be lawfully competent to deduct an amount not exceeding four per centum purporting to be a part or full of the tax payable on such sales, from the bills or invoices raised by the works-contractor as payable by the person : Provided that no such payment or discharge of any bill raised by a works-contractor shall be made without deduction referred to in Subsection (1) : Provided further that if the State Government is satisfied that it is necessary to do so in the interest of the State Revenue it may notify the names/posts of such persons who shall be lawfully competent person to make such deduction as referred to in Sub-sec. (1).

(2) The deduction referred to in Sub-sec. (1) shall be made in the manner which may be prescribed."

4. As Sec. 25A(2) required the manner in which deduction under Sub-sec. (1) of Sec. 25A is to be prescribed, Rule 26A was introduced in the Rules prescribing the manner of deduction of tax from the bills/ invoices of the works-contractors under Sec. 25A. Rule 26A(1) and (2) are as follows :-

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"26A. (1) The deduction referred to in Sub-sec. (1) of Sec. 25A shall be made at the rate notified in this behalf from time to time by the Government.

(2) Such deduction shall be made from all payments being made in respect of all works contracts executed, whether in part or in full, after 1st April, 1984, provided the total value of works contract or contracts exceeds Rs. 25,000."

Sub-rule (1) of Rule 26A requires a rate to be notified at which deduction referred to in Sub-sec. (1) of Sec. 25A is to be made. Sub-rule (2) thereof enjoins persons making payment in respect of works contracts to deduct the tax referred to in Sec. 25A at the rates notified from "all payments being made in respect of all works contracts executed, whether in part or in full,......" if the total value of works contracts exceeds Rs. 25,000.

5. During the pendency of this writ application, the validity and the scope of Clause (29A)(b) of Article 468 was examined by the Supreme Court in the case of Builders Association of Indi