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TMI Blog2009 (8) TMI 1092X X X X Extracts X X X X X X X X Extracts X X X X ..... gment of the court was delivered by M.M. KUMAR J. This order shall dispose of C.W.P. Nos. 21461 of 2008 and 2022 and 6487 of 2009, as common question of law and facts are involved. However, the facts are being referred from 21461 of 2008. The petitioner is aggrieved by the action of the respondents in deducting sales tax/value added tax from the works contract carried out by it, especially when no transfer of goods was involved. The petitioner has further prayed that clause 14(a) of the agreements, dated May 26, 2006, March 13, 2007, March 14, 2007, February 15, 2008 and February 23, 2008 (annexures P1 to P6, respectively), which prescribes deduction of sales tax at two per cent from the running bills of the contractor, may be decla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in terms of clause 14(a) of the agreements. The deductions made from April 1, 2005 to April 1, 2008 are tabulated as under: Period of deduction Amount (in Rs.) 1.4.2005 to 31.3.2006 30,099 1.4.2006 to 31.3.2007 1,93,313 1.4.2007 to 31.3.2008 2,82,814 1.4.2008 to 31.8.2008 2,33,757 Total 7,39,983 Reference has also been made to the 46th Amendment Act, 1982, whereby the Parliament has inserted a definition, namely, clause (29A) in article 366 of the Constitution, which reads thus: 366. Definitions. In this Constitution, unless the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them, that is to say . . . (29A) 'tax on the sale or purchase of goods' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , no transfer of goods or sale of goods is involved, no tax was attracted. Reliance has also been placed on the judgments of this court rendered in the cases of Keshob Plants v. Bharat Sanchar Nigam Limited [2009] 22 VST 422, Deepak Kumar v. Union of India (C.W.P. No. 12203 of 2000, decided on September 21, 2001) and Freedom Info Systems v. Bharat Sanchar Nigam Limited [2009] 22 VST 440, wherein it has been held that if in a works contract, no sale of goods was involved, no sales tax could be allowed to be collected merely on the ground that the same could be refunded later. In the written statement filed on behalf of respondent No. 1 the stand taken is that the BSNL-respondent No. 1 has rightly deducted sales tax at two per cent from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of Punjab, were also placed on record. A reading of communication dated July 17, 2009, sent by the Financial Commissioner, reveals that sanction to defend the case on behalf of respondent Nos. 2 and 3 was accorded on February 21, 2009 and the office of ETC, DETC (Legal) and AETC, Ludhiana, were directly communicated to file parawise reply to the instant petition after getting it vetted. Thereafter, series of letters, as per interlocutory orders passed by this court, were sent by the learned Advocate-General, Punjab, including the one granting last opportunity. There was no explanation tendered by the Excise and Taxation Officer in respect of the period from January 2009 to June 2009 for not filing written statement although some e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d similar provisions have been made under section 27 of the Act for deduction of tax from the amount payable to the works contractors. It has been submitted that the petitioner could have approached the Commissioner or the Designated Officer and get a certificate for non-deduction of tax as provided in clause (10) of section 27 of the Act. However, instead of approaching the Commissioner or the designated officer the petitioner has filed the instant petition after four years. With regard non-supply of any material by the petitioner to BSNL-respondent No. 1, it has been pointed out that some material would certainly exchange hands during a period of four years because it is own case of the petitioner that it is doing the work of repair of ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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