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TMI Blog2008 (1) TMI 844X X X X Extracts X X X X X X X X Extracts X X X X ..... (C) No. 197 of 2007 - - - Dated:- 7-1-2008 - SAHA U.B. , J. ORDER:- U.B. SAHA J. The instant writ petition has been filed by the petitionerassessee, a registered dealer for selling motor vehicle parts/component of motor vehicles including bearing , for cancelling/quashing and/or setting aside the decisions of the Assistant Commissioner of Taxes, the respondent No. 3 herein, vide his communications dated May 15, 2006, June 20, 2006 and 20/26 October, 2006, annexures C, E and G, respectively, to the writ petition along with interim prayer for staying the aforesaid impugned decisions till disposal of the writ petition. Heard Mr. S.C. Saha, learned counsel for the petitioner and Mr. N.C. Pal, learned Government Advocate assisted by Mr. D.C. Nath, learned counsel for the State respondents. Considering the points involved in the instant writ petition, on January 3, 2008, the learned Government Counsel appearing for the State respondents was allowed time to obtain necessary instructions so that the entire matter can be disposed of at this stage when the State respondents filed their counter-affidavit. Today, when the matter is taken up for hearing, Mr. Nath, learned S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,17,043.64 in respect of bearing and deposited the same with the revenue authority. However, with no response, the petitioner wrote another letter dated May 4, 2006 to the respondent No. 2, the Commissioner of Taxes for confirmation of VAT on bearing stating inter alia that four per cent VAT will be applicable to all types of bearings including automobile, power tiller and tractor and industrial bearings and, according to the petitioner, all over India, where VAT is applicable, four per cent VAT is charged on all types of bearings . The petitioner requested to confirm the same. Thereafter, by letter dated May 15, 2006, the Assistant Commissioner of Taxes informed the petitioner that if bearing is used as automobile part, then it is taxable at 12.5 per cent under entry No. 117 of Schedule II(b) of the VAT Act, 2004 and if it is used as part of power tiller or tractor, then it is taxable at four per cent under entry No. 95 of the Schedule II(a). But if it is used as part of capital goods, then it is taxable at four per cent under entry No. 25 of the Schedule II(a) and serial No. 2 of the notification dated June 8, 2006. As the decision of respondent No. 3 was against th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se to such legal action as may be available to them. After receiving the aforesaid order of this court, respondent No. 3 has entered into the matter afresh and has given a decision vide his letter dated October 20/26, 2006 wherein he has stated that bearing is taxable at 12.5 per cent instead of four per cent and in support of his decision, respondent No. 3 has clarified the respective entry in the Schedule II(a) and II(b) of the VAT Act, 2004. Being aggrieved by the said decision, the petitioner preferred the present writ petition. By filing a detailed affidavit-in-opposition, the respondents-revenue authorities denied allegations of the petitioner and the stand of the Revenue authorities is specifically stated in paras 16 and 17 of their counter, which are reproduced hereunder: 16. That, in reply to the averments and/or contention made in paragraph 10 of the writ petition, I state that, the averment made in paragraph 10 is disputed because the dealer-petitioner possesses the registration certificate only for batteries and parts, lubricants and components and spare parts of motor vehicle and the 'bearings' imported with the strength of his registration for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other sources. In the instant case for bearing when there is specific rate fixed by the Legislature, the revenue authority cannot take the help of their own interpretation to impose more tax on the same article/goods/items. In the instant case, the petitioner collected tax from the purchaser of bearing at four per cent up to June 30, 2006 and thereafter when the authority clarified the position, the petitioner collected the tax on bearing at 12.5 per cent and the amount collected as revenue has already been deposited with the revenue authority, Mr. Saha contended. Mr. Saha further contended that this court by its order dated August 30, 2006 in W.P. (C) No. 330 of 2006 directed the Revenue authority, particularly respondent No. 3, to take decision keeping in mind that bearing appearing in entry No. 15 of the Schedule II(a) has been specifically incorporated and in that, prescribed taxable rate is at four per cent and the said authority has also been given liberty to decide whether in such a situation other provisions as indicated in annexure C communication dated May 15, 2006 will at all be applicable. But in spite of the aforesaid order, the Revenue authority did not c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir, With reference to your letter No. MAV/AK/01 dated May 4, 2006 on the subject noted above this is to inform you that if 'bearing' is used as automobile part then it is taxable at 12.5 per cent under entry No. 117 of the Schedule II(b) of Tripura Value Added Tax Act, 2004. If it is used as part of power tiller or tractor then it is taxable at four per cent under entry No. 95 of the Schedule II(a). But if it is used as part of capital goods then it is taxable at four per cent under entry No. 25 of the Schedule II(a) and Sl. No. 2 of the Notification issued vide No. F. 1-11(17)-TAX/VAT/2005 (Part-V)/5246-316 dated June 8, 2006. Yours faithfully, Sd/-B. K. Jamatia May 15, 2006 Asstt. Commissioner of Taxes Government of Tripura Encl.: As stated above. No. F. 1-3(2)-TAX/2005/9411 GOVERNMENT OF TRIPURA Office of the Commissioner of Taxes, Palace Compound, Agartala Dated, Agartala the June 20, 2006 To M/s. Mahamaya Agencies Laxmi Narayan Bari Road Agartala Sub: Charging of VAT on bearings. Sir, With reference to your letter No. MAV/AK/02 dated May 29, 2006 this is to inform you that if 'bearing' is used other th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made by the Legislature between the Schedule II(a) Sl. No. 15 and II(b) Sl. No. 117. (d) Since there's a specific Schedule covering the entry motor vehicle . . . components, spare parts and accessories thereof on Schedule II(b) at Sl. No. 117, the dealer of 'components and spare parts of motor vehicle' was/is liable to collect/pay VAT under Schedule II(b) of the TVAT Act, 2004 at 12.5 per cent on selling of 'bearings' which is included under automobile parts and also such dealer cannot deal in 'bearing' under Schedule II(a) beyond his Schedule of registration issued under the TVAT Act, 2004. Keeping in view the above terms of the Act, you being the dealer of 'components and spare parts of motor vehicle' were are liable to collect/pay VAT at 12.5 per cent on selling of 'bearings'. This is for your information, which is conveyed to you as per direction of the authority. Thanking you, Yours faithfully, Sd/B. K. Jamatia October 26, 2006 Asstt. Commissioner of Taxes Govt. of Tripura This court has given anxious consideration to the submissions of the learned counsel for the parties. The respondents-Revenue autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other entry in any of the Schedule relating to rate of tax on bearing , from which it can be presumed by any reasonable person that rate of tax on bearing is different considering the different nature of use. As at the relevant time, there was no specific entry in any Schedule to the VAT Act, 2004 on bearing , the seller dealer was not in a position to collect different rates of tax on same item from different purchasers taking the note of different use of the said taxable article. It is not possible by a seller to make elaborate enquiries from the purchasers at the time when he sells any articles as to for what purpose or use the purchasers are purchasing the articles. And not only that, in that situation the revenue authorities also have to make inquiries from every dealer to whom they sell the article and for what purpose, which is practically not possible and what will happen if the purchaser made different declaration regarding the nature of use of the articles at the time of purchasing the actual nature of use. In case of bearing the same can be used in bicycle, tractor, motor vehicles, boat used by the fishermen, etc., therefore, in every case of selling, an assessee-d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere claiming various rates of taxes on bearing which has been clubbed together in a new entry, i.e., entry No. 106 of the Schedule II(b). In view of the aforesaid discussion, this court is of the further opinion that the writ petitioner is not liable to pay tax more than four per cent on bearing before the amendment of VAT Act, 2004 came, as by that amendment only, the Legislature clarified the rate of tax on bearing . However, in the instant case, as it is admitted from the pleadings of the petitioner that before amendment of the Tripura Value Added Tax Act, 2004, the petitioner could not collect value added tax at 12.5 per cent on selling of bearing but after clarification by the Revenue authority, the petitioner collected tax at 12.5 per cent from July 1, 2006. Therefore, the petitioner is liable to deposit the value added tax collected by it from the purchasers at 12.5 per cent on and from July 1, 2006 to the Revenue authority, i.e., the Commissioner of Taxes, Tripura and consequent thereto, the impugned decisions/communications, dated May 15, 2006, June 20, 2006 and October 20/26, 2006, annexures C, E and G respectively, are hereby quashed. Accordingly, the writ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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