9911796707
TMI Blog2015 (1) TMI 412X X X X Extracts X X X X X X X X Extracts X X X X ..... for challenging the constitutionality of the rule. The petitioner as such has no statutory liability to pay tax at source or nor can he be assessed in terms of rule 7(8) of the Tripura Value Added Tax Rules, 2005, which provides all such deductions and deposits into the Government Treasury shall be deemed to be provisional payment of tax and shall be adjusted at the time of assessment under sections 29/30/31 of the Act as the case may be, but by virtue of the turnkey agreements as entered into between respondent No. 4 and the petitioner, the petitioner has been required to pay the amount of such tax to respondent No. 4 and this clause has no relation with the taxing authority nor the petitioner has been directed to deposit tax neither were they subjected to the procedure of determination of tax or assessment - Neither the dealer, the Union of India (not made party in the proceeding) nor respondent No. 4 has canvassed any grievance in this regard - there is no question of public injury that any member of the public may having interest come forward for a judicial redress of the injury on challenging the constitutional or legal validity of any piece of legislation. The petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er No. 5/103/IBBF/057 dated 10.04.2007 for package TR-10 VI NIT No. 70064/BF/NIT/ Fencing/ 1068 dated 23.12.2006 VII Work Order No. 5/104/IBBF/059 dated 10.04.2007 for package TR-11 VII NIT No. 70064/BF/NIT/ Fencing/ 1077 dated 23.12.2006 VIII Work Order No. 5/105/IBBF/061 dated 10.04.2007 for package TR-12 VIII NIT No. 70064/BF/NIT/ Fencing/ 1077 dated 23.12.2006 IX Work Order No. 5/106/IBBF/063 dated 10.04.2007 for package TR Link-7 IX NIT No. 70064/BF/NIT/ Fencing/ 1077 dated 23.12.2006 X Work Order No. 17/403/IBBF/1260 dated 08.08.2009 for package TR01 (Road) X NIT NO.70064/IBBF/NIT/ TR MZ/537 dated 21.05.2009 XI Work Order No. 8/200/IBBF/1262 dated 08.08.2009 for package TR Link-Joymoni para. XI NIT No.70064/IBBF/NIT/ TR MZ/ 537 dated 21.05.2009 XII Work Order No. 04/77/IBBW/1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rged that in the transaction respondent No. 4 for all purposes is the contractor from whose bills, the contractee, the Union of India in the Ministry of Home affairs has been authorized by the statute to deduct the tax at source for execution of the works contract for the transfer of property in goods involved thereto. The grievance of the petitioner as it surfaced from the writ petition is that respondent No. 4 (not the taxing authority under the Tripura Value Added Tax Act, 2004) has been deducting the tax at source in pursuance of section 4(3) of the Tripura Value Added Tax Act, 2004 read with rule 7(1) of the Tripura Value Added Tax Rules, 2005 as the statute provides that the deduction of tax at the time of payment, every person responsible for paying any sum to any person on account of works contract and right to use any goods for any purpose, shall at the time of credit of such sum to account of the person or at the time of payment thereof in cash or by issue of a cheque or draft or any other mode, deduct such amount towards sales tax (not being more than the total tax payable by the dealer) as may be prescribed. There is no dispute that the petitioner is neither the cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nor the tax at source is directly deducted by the dealer from the petitioner but by the contractor only by dint of the terms of the turnkey agreements nor that the petitioner by any means comes within the meaning of the dealer or conversely whether any person having been affected by the provisions of the private contract, provisions of which have been agreed to by the petitioner, can approach this court for challenging the constitutionality of the said rule. Mr. A. Bhowmik, learned counsel, quite strenuously argued that since the tax is being deducted from the petitioner in pursuance of the impugned provision, the petitioner is definitely an aggrieved person . In support of his contention he also relied on the decision of the apex court in Nathpa Jhakri Jt. Venture v. State of Himachal Pradesh as reported in [2000] 118 STC 306 (SC); [2000] 3 SCC 319. In that case the appellant had called in question the validity of section 12A of the Himachal Pradesh General Sales Tax Act, 1968 and rule 31A of the Himachal Pradesh General Sales Tax Rules before the High Court of Himachal Pradesh as that provision provided for deduction of an amount from the bills or invoices of the works contra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n rejecting the contention advanced on behalf of the State. In that case the person who approached the court was the contractor from whom the tax was being deducted by the principal/dealer for execution of the contract. The other decision as relied on by the petitioner in Rapti Commission Agency v. State of U.P. as reported in [2006] 147 STC 566 (SC); [2006] 6 SCC 522 where the agent of the principals was subjected to the procedure of assessment and determination of tax even though he had no liabilities to pay the tax. The apex court while dealing with the issue of locus standi held that (page 574 in 147 STC): Before we part with the case, it would be appropriate to remind the Legislatures of what was stated in Bhawani Cotton Mill's case [1967] 20 STC 290 (SC); AIR 1967 SC 1616 that if a person is not liable for payment of tax at all, at any time, the collection of a tax from him, with a possible contingency of refund at a later stage, will not make the original levy valid, because if sales or purchases are exempt from taxation altogether, they can never be taken into account, at any stage, for the purpose of calculating or arriving at the taxable turnover and for levyi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is no question of public injury that any member of the public may having interest come forward for a judicial redress of the injury on challenging the constitutional or legal validity of any piece of legislation. Even though Mr. Bhowmik, learned counsel appearing for the petitioner, did not refer to the decision of the apex court in Steel Authority of India Ltd. v. State of Orissa as reported in [2000] 118 STC 297 (SC); [2000] 3 SCC 200 which has been discussed both the decisions supra, the apex court therein has discussed as obiter the question of locus standi. The core issue in that case can be availed of from the following passage (page 304 in 118 STC): 13. There can be no doubt, upon a plain interpretation of section 13AA, that it is enacted for the purposes of deduction at source of the State sales tax that is payable by a contractor on the value of a works contract. For the purposes of the deduction neither the owner nor the Commissioner who issues to the contractor a certificate under section 13AA(5) is entitled to take into account the fact that the works contract involves transfer of property in goods consequent upon of an inter-State sale, an outside sale or a sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on merit and he referred the interim orders passed in W.P. (C) No. 689 of 2012, W.P. (C) No. 690 of 2012, W.P. (C) No. 691 of 2012 and W.P. (C) No. 692 of 2012 at Imphal Bench. Mr. N.C. Pal, learned Government Advocate, stated that even not by any executive fiat the contractor was asked for deduction of tax at source from the petitioner. In view of this, the question of locus standi for issuance of certiorari is of paramount importance. He would further contend that the petitioner lacks locus standi and as such this petition is not maintainable. On considering the challenge of the petitioner, this court is countenance with the irresistible view that the petitioner has got no locus standi to invoke the jurisdiction under article 226 of the Constitution of India for calling the validity of rule 7(1) of the Tripura Value Added Tax Rules, 2005 in question or for praying other consequential reliefs as stated. Moreover, from the work-orders as awarded by respondent No. 4 it is apparent that the petitioner agreed to pay the category of the tax which includes the works contract tax/VAT. The decision in Haroop v. Bayley as reported in 25 LJ. MC 107 holds that a person who has consent ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
