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TMI Blog2003 (1) TMI 658X X X X Extracts X X X X X X X X Extracts X X X X ..... xecutive Engineer and Superintending Engineer ONGC respectively). The taxing authority issued demand notice requiring the petitioner to pay the aforesaid dues. The petitioner moved a writ petition before this Court in Civil Rule No. 124 of 1988 challenging the validity of the assessment order. This Court vide order dated May 23, 1990 allowed the writ petition directing the Commissioner of Sales Tax to admit the statutory appeal and to decide the matter on merit. The Court did not examine the vires of provision of amended section 3A of the Act. The petitioner preferred statutory appeal accordingly and after hearing, the Additional Commissioner of Sales Tax vide order dated October 20, 2002 quashed the order of imposition of penalty only while maintained the order of assessment and tax payable as determined by the Superintendent of Taxes. The Tripura Legislative Assembly amended the Act by the Tripura Sales Tax (Fourth Amendment) Act, 1987 substituting the provision of section 3A thereto for the purpose of assessment and recovery of sales tax on works contract. By section 1(3) of the Fourth Amendment Act, the amended section 3A of the Act has been made retrospective effect from July ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een laid with identical reliefs. Only the amount of tax and dates of assessment order are different. The State respondents as well as the ONGC took the identical stand as has been taken in C.R. No. 17 of 1994. 5.. On perusal of the pleadings of the respective parties and after hearing the learned counsel of either side, the following questions of law appear to be relevant for decision of both the cases: (i) Whether the sales tax is to be levied on the basis of prevailing rate of tax with reference to the date of works order or whether the sales tax is to be levied with reference to the rate prescribed by subsequent amendment with retrospective effect covering the date of works order? (ii) Whether in absence of any agreement to the contrary between the contractor dealer and the ONGC, the subsequently amended rate with retrospective effect would be leviable from the contractor-dealer? (iii) Whether in such case the contractor-dealer is entitled to be reimbursed the leviable enhanced part of the tax pursuant to retrospectivity of the Act from the ONGC? 6.. From the assessment order pertaining to C.R. No. 17 of 1994 it appears that the petitioner was allotted with the works v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the parties, it is expedient to excerpt the related provisions of the Tripura Sales Tax (Fourth Amendment) Act, 1987: "1. Short title, extent and commencement.-(1) This Act may be called the Tripura Sales Tax (Fourth Amendment) Act, 1987. (2) It extends to the whole of Tripura. (3) Clause (i) of section 3 and section 4 shall be deemed to have come into force on the twelfth day of July, 1984 and all other provisions shall come into force at once. 2.............. 3.............. 4.. Amendment of section 3A.-For section 3A of the principal Act, the following section shall be substituted: 3A. Tax on the transfer of property in goods involved in the execution of works contract.-Notwithstanding anything contained elsewhere in this Act, any transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract shall be deemed to be a sale of those goods by the person making the transfer and shall be liable to be taxed at the rate specified in column 3 of the Schedule: Provided that in respect of any such transfer only so much value of the goods involved in the works contract which has actually been paid to the dealer du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the work orders issued prior to June 12, 1987 (except one item) and as such, in my considered opinion, the tax cannot be levied on the goods transferred or property in goods used in execution of works contract pursuant to work order issued prior to the date of notification by applying the amended provision. While entering into the agreement with the ONGC, the petitioner-contractor could not anticipate the future amendment of the fiscal legislation imposing tax at a rate different than that of which existed at the time of entering into agreement and as such the petitioner neither could lay claim to the ONGC for revising the accepted rate of its tender and in such situation the retrospective operation of the amended provision of section 3A would be an absurdity so far levying tax regarding works contract he executed pursuant to the work orders issued prior to the notification of amended Act. 12.. Under the Sales Tax Act, the dealer/assessee virtually collects taxes from the consumer or purchaser at par the rate prevailed at the time of transaction of sale, be it transfer of goods/ commodities or transfer of property in goods involved in the execution of works contract and as su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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