2003 (1) TMI 658 - HC - VAT and Sales Tax

Issues Involved:

1. Whether sales tax is to be levied based on the prevailing rate of tax at the time of the works order or the rate prescribed by a subsequent amendment with retrospective effect.
2. Whether the subsequently amended rate with retrospective effect is leviable from the contractor-dealer in the absence of any agreement to the contrary with ONGC.
3. Whether the contractor-dealer is entitled to reimbursement of the enhanced tax due to the retrospective effect of the Act from ONGC.

Issue-wise Detailed Analysis:

1. Levy of Sales Tax Based on Prevailing Rate vs. Retrospective Amendment:

The petitioner challenged the vires of the retrospective application of section 3A of the Tripura Sales Tax Act, which was amended by the Tripura Sales Tax (Fourth Amendment) Act, 1987, and made effective from July 12, 1984. The petitioner argued that the retrospective effect of section 3A was unreasonable, absurd, and unjust. The court noted that the petitioner executed works contracts under ONGC based on work orders issued before the amendment's publication date, except one work order dated July 17, 1987. The court held that the retrospective operation of the amended provision of fiscal law must be just and practicable and should not impose an impracticable burden on the assessee. Therefore, the tax cannot be levied on goods transferred or property in goods used in execution of works contracts pursuant to work orders issued before the notification of the amended Act.

2. Leviability of Amended Rate with Retrospective Effect:

The court examined whether the subsequently amended rate with retrospective effect would be leviable from the contractor-dealer in the absence of any agreement to the contrary between the contractor and ONGC. The court concluded that the retrospective operation of the amended provision of section 3A would only be applicable to transactions of works contracts that commenced before June 12, 1987, but were subsisting on or after that date. In such cases, the contractor is entitled to reimbursement of the additional tax from the authority that allotted the contract. However, if the execution of the works contract was completed or rescinded before June 12, 1987, the contractor cannot be asked to pay any additional taxes pursuant to the amended provision.

3. Reimbursement of Enhanced Tax Due to Retrospective Effect:

The court addressed whether the contractor-dealer is entitled to reimbursement of the enhanced tax due to the retrospective effect of the Act from ONGC. It held that if the rate of tax is enhanced by a subsequent amendment with retrospective effect during the subsistence of the contract and the progress of the execution of the works contract, the tax is leviable at the higher rate from the contractor. In turn, the contractor is entitled to be reimbursed by the authority that allotted the works contract. However, if the execution of the works contract was completed or rescinded before the amendment, the retrospective effect of the amended provision does not apply.

Conclusion:

The court partly allowed both writ petitions, quashed the impugned assessment orders, and directed the assessing authority to reassess the turnover for levying and collecting sales tax from the petitioner based on the legal implications enunciated in the judgment. The court emphasized that the sales tax is to be levied based on the prevailing rate of tax at the time of the work orders, and if the rate is enhanced retrospectively during the subsistence of the contract, the contractor is entitled to reimbursement of the additional tax. No costs were awarded.

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