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TMI Blog2001 (8) TMI 1350X X X X Extracts X X X X X X X X Extracts X X X X ..... hicles for specified period to be used by the ONGC and GAIL for transportation/conveyance of their officers and staff. Pursuant thereto the petitioners participated in the bid offering their respective rates and having found the rates offered by the petitioners lowest and acceptable the authorities issued the work orders. The relevant abstracts of few specimen of "work orders" so issued by the ONGC and GAIL are reproduced below for better appreciation: "To M/s. Swapan Kr. Paul, B.K. Road, Agartala, Tripura West. Sub: Work Order for supply one diesel driven Tourist Ambassador Car. Dear Sir, Subject to the terms and conditions contained in tender/contract No. AGT/TBG/TPT/CARS/7/9798 and in continuation to the L.O.I. dated 23031998 you are requested to supply a diesel driven tourist Ambassador car of model not earlier than 1996 for 12 hours duty on the following rates: For 12 hours duty Fixed charge Rs. 410.00 per day (rupees four hundred ten only) Running charge Rs. 3.90 per km. (rupees three and paise ninety only) Overtime charge Rs. 35.00 per hr. (rupees thirtyfive only) beyond 12 hrs. duty Outstation charge Rs. 125 per day (rupees one hundred twenty five only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... um bearing No. F.17(6)TAX/92 dated Nil requiring the hirers, viz., ONGC and GAIL to deduct 4 per cent amount from the respective bills of the petitioners pursuant to the provision of section 3A of the Act read with rule 3A of the Tripura Sales Tax (9th Amendment) Rules, 1989. In some cases the hirers already started deductions and in some cases deductions are contem plated. Hence the writ petitions. 4.. The petitioners challenged the vires of rule 3A of the Rules on the ground that there is no charging provision under the Act for levying of sales tax on the transaction of transfer of the right to use any goods and as such the Rules being a delegated legislation cannot impose and/or dictate for realisation of any tax at source and as such rule 3A of the Rules and also the impugned memorandum have been put under challenge. 5.. The State Government and the sales tax authorities contested the cases by filing counteraffidavit contending, inter alia, that the transactions involved in the present cases are fully covered by the term "sale" within the meaning of section 2(g)(ii) of the Act and under the second proviso to section 3(1) of the Act, tax at the rate of 4 per cent of the cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on behalf of the Staterespondents having referred to the second proviso to section 3(1) of the Act submits that any valuable consid eration received or receivable for transfer of the right to use any vehicle for any purpose (whether or not for specified period) is taxable at the rate of 4 per cent of the consideration amount in view of second proviso to section 3(1) of the Act. 9.. From a combined reading of sections 2(b), 2(g) and 3A of the Act it reveals that for the purpose of the Act there are three kinds of "sale". Under section 2(b), "sale" means sale of goods, manufac tured, made or processed in Tripura or brought into Tripura from outside for the purpose of sale and also includes: transaction under section 3A of the Act where any transfer of property in goods either in the form of goods in original or in some other form involved in the execution of the works contract and also a transaction under section 2(g) of the Act where any transfer of right to use any goods for any purpose (whether or not for specified period) for any valuable consideration. The first term is undoubtedly a "sale" in common parlance, that is sale of goods itself, but the transactions covered by se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ired either by ONGC or by GAIL or any other authority or individual on payment cannot be termed as a "sale" for the purpose of identifying them to be "dealers ". 13.. Mr. Saha, the learned Senior Government Advocate, on the other hand, referred the second proviso to section 3(1) of the Act and according to him, at the time of initial enactment of the Act in 1976, the "transfer of right to use any goods" was not termed as "sale" and as such section 3(1) of the Act did not include such transaction within the periphery of charging provision, but since in view of 46th Amendment of the Constitution of India in 1982, the Act has under gone amendment and in view of the amended meaning of "sale" as available under section 2(g)(ii) of the Act, any transfer of right to use any goods for any purpose has been brought under its fold and as such the charging section required further amendment and the State Legislature vide "the Tripura Sales Tax (Fourth Amendment) Act, 1987" inserted the second proviso to section 3(1) of the Act. 14.. From the aforesaid discussion and the legal position analysed, I am of the considered opinion to hold that the sales tax on the sale of goods simpliciter is ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill(s) or invoice(s) of the transferer (a) on account of such transfer where the transfer of right to use goods was agreed to before first day of January, 1989; (b) The amounts received as penalty for defaults in payment or as damages for any loss or damage caused to the goods by the person to whom such transfer was made; and (c) The amount representing the valuable consideration received for such transfer in respect of goods exempt from tax under sub sections (2) and (3) of section 3 of the Act." 17.. Mr. Bhowmik, learned Senior Counsel for the petitioners having referred the following citations submits that the provision of fiscal statute must be strictly construed having regard to the letters and words used in the particular provision of the statute. There is no room for entertaining the intendment of the Act nor the statement of reasons and objects of the Bill into consideration in course of interpretation of any provision of the fiscal statute. (1) [1940] 8 ITR 522 (PC); AIR 1940 PC 183 (Bank of Chettinad Ltd. v. Commissioner of Incometax, Madras); (2) [1957] 8 STC 561 (SC); AIR 1957 SC 657 (A.V. Fernandez v. State of Kerala); (3) [1990] 76 STC 71 (SC); AIR 199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted in AIR 1975 SC 1758 and another in Vishesh Kumar v. Shanti Prasad, reported in AIR 1980 SC 892 and submits that a proviso to a section cannot be construed to defeat the basic intention expressed in the substantive legislation nor the proviso could expand the meaning of the main section. 22.. It is very difficult to accept the submission of Mr. Bhowmik on that score. Some time proviso can create an independent right or liability having overridden the main section. It depends upon the words and language used in the proviso. Sometime proviso may be decisive having its own independency, sometime proviso may be auxiliary to the main provision and everything depends upon the words and language used by the Legislature in the proviso. As I have already opined that the second proviso to section 3(1) of the Act is an independent charging provision so far the "deemed sale" is concerned by way of transfer of the right to use any goods for any purpose (whether or not for a specified period) for valuable consid eration and rate of tax is 4 per cent of the valuable consideration received or receivable. 23.. Though there is no provision for deduction of tax at source in the Act, but accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der article 143 of the Constitution of India, reported in AIR 1951 SC 332 [In re: Art. 143 of Constitution of India and Delhi Laws Act (1912)] submits that Legislature must decide its primary legislative function itself and not through other agency. 26.. In the aforecited decision, the seven Judges' Constitutional Bench unequivocally commands that Legislature itself must discharge its primary legislative functions and so far the auxiliary or subsidiary functions are concerned that could be delegated to the outside agency. The authority to collect tax, mode of assessment of tax, format of challan, statutory notice, etc., are undoubtedly subsidiary and incidental functions rightly to be delegated, but who is to pay tax, on what transaction tax is to be levied, whether tax is to be paid at the closure of assessment year, whether tax is to be realised in advance or recovered at source, these are fundamentally essential functions of the legislation which cannot be delegated. The Legisla ture in its own wisdom incorporated the provision of section 3AA for realisation of tax at source so far the works contract is concerned, but so far the ordinary sale of taxable goods and the transacti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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