9911796707
TMI Blog2012 (8) TMI 888X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1956 and it is a manufacturer supplier-contractor of canopy, cladding, etc., having its factory at Sasewadi, Mumbai-Bangalore Highway, Tal. Bhor, District Pune in the State of Maharashtra. The petitioner-company was awarded with various work orders by the Indian Oil Corporation Ltd. (for short, "IOCL") for supply, fabrication and installation and retail visual identity (for short, "RVI") elements at various retail outlets against limited tender No. OSO-ENG/ 2006-07/LT-41. As per the work order placed on the petitioner by IOCL, the petitioner is required to supply fabrication and installation of RVI elements at various retail outlets which will be subject to various terms and conditions, specifications and rate quoted by the petitioner-company and as finalized by IOCL. The work order provides for a time period for completion of work and further provides for compensation for delay. The contract further provides for service tax as per the provisions of law. Pursuant to the aforesaid contract entered into by the petitioner with IOCL, the petitioner-company supplied canopy, sales building fascia, column cladding, etc., to IOCL. Against such supply, the petitioner-company has raised r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in goods in the State of Orissa pursuant to the contract with IOCL and the entire goods which are required for the purpose of RVI elements in various retail outlets having been supplied by the petitioner to IOCL under the Central Sales Tax Act, the petitioner does not incur any liability under the provisions of the Orissa Value Added Tax Act. The petitioner thus being not liable to pay tax under the Orissa Value Added Tax Act does not incur any liability for obtaining registration under section 24 of the said Orissa Value Added Tax Act. The expression "sale" is defined under section 2 of the Orissa Value Added Tax Act and the note annexed to the Explanation speaks in no uncertain terms that a sale or purchase shall not be deemed to have taken place inside the State, if the goods are sold in the course of inter-State trade and commerce. Placing reliance on a decision of the honourable Supreme Court in the case of Gannon Dunkerley & Co. v. State of Rajasthan [1993] 88 STC 204 (SC), Mr. Sahoo submitted that for the purpose of arriving at taxable turnover, turnover relating to inter-State transactions, export, import under the Central Sales Tax Act is to be excluded. Thus, the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L pursuant to the contract executed with the IOCL are sales in course of inter-State trade, therefore, by virtue of section 54 of the Orissa Value Added Tax Act deduction of tax at source and so also deposit of such tax with the State Government are grossly unauthorized and the said amount is refundable to the petitioner. It is a trite rule of law much less the mandate of the Constitution which provides that no tax shall be levied without authority of law as per article 265 of the Constitution of India. Thus, the deduction of tax from the petitioner and deposit of such tax with the State Government being unauthorized, the same amounts to unjust enrichment on the part of the State and is thus refundable to the petitioner. In support of this contention, Mr. Sahoo relied upon the decision of this court in the case of Brajendra Mishra v. State of Orissa [1994] 92 STC 17 (Orissa). It was submitted that this court while examining the validity of section 13AA of the Repealed Act, struck down the necessary provision of said section providing deduction of tax in respect of inter-State sales, export or import vis-a-vis deemed sales contemplated under article 366, sub-article (29A)(b) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... medy is available to the petitioner under subsection (5) of section 54 of the Act. The petitioner's case is that no tax is either payable or deductible at source under section 54 of the Orissa Value Added Tax Act. In such event, the petitioner should have made an application to the assessing officer and if he satisfies that no tax is payable, it could have obtained a "no deduction certificate" from the assessing officer. On production of such certificate before the contractee, i.e., IOCL, no tax would have been deducted from the payments made to the petitioner by the IOCL. This court by exercising jurisdiction under article 226 of the Constitution cannot decide the question whether the transaction in question is inter-State or intra-State in nature. Placing reliance on the judgment of the honourable Supreme Court in the case of Suganmal v. State of Madhya Pradesh [1965] 16 STC 398 (SC), Mr. Kar, submitted that the proper course left to the petitioner is to approach the civil court for refund of tax alleged to have been illegally collected and not by a petition under article 226 of the Constitution of India. On the rival contentions of both parties, the only question that falls ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relating to interState transactions, export, import under the Central Sales Tax Act are to be excluded, that the State Act is always subject to the provisions of sections 3 and 5 of the Central Sales Tax Act; that sale or purchase in course of interState trade or commerce and levy and collection of tax thereon by the State is prohibited by article 269 of the Constitution of India; that article 286(1) of the Constitution of India prohibits the State from making a law imposing or authorizing the imposition of tax on the sale or purchase of goods where such sale or purchase takes place (a) outside the State, or (b) in the course of import of goods into or export of goods out of the territory of India; that the legislative power conferred under entry 54 of the State List does not extend to imposing tax on a sale or purchase of goods which takes place in course of import or export of goods, and that the State Legislature under entry 54 of the State List cannot transgress the limitations provided under the Constitution. Law is well-settled that a particular sale may either be intra-State or inter-State sale, but cannot be both. A transaction of sale is a single transaction whereby the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) involves both transfer of property in the goods and labour or services or involves only labour or service and accordingly justifies deduction of tax on the part of the same in respect of works contract or as the case may be justifies no deduction of tax he shall, after giving the contractor a reasonable opportunity of being heard, grant him such certificate as may be appropriate in the manner prescribed. Clause (b) of sub-section (5) of section 54 of the Orissa Value Added Tax Act provides that where such certificate is produced by a contractor before the deducting authority, until such certificate is cancelled by the assessing authority, the deducting authority shall either make no deduction of tax or make the deduction of tax, as the case may be, in accordance with the said certificate. The Explanation appended to section 54 provides that nothing in sub-section (5) or any other provision of the this section shall be construed as to be authorized deduction of any amount towards tax on the value of any property in goods transferred in the course of inter-State sales, sales outside the State or sales in the course of the import. In view of the above statutory provision, it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Works [2001] 1 OLR 586 (Orissa) and Crown Re-roller (P) Ltd. [2007] 6 VST 331 (SC) for issuance of a writ of mandamus directing the State to grant refund to the petitioner is of no help to the petitioner. Moreover, the facts of those cases are distinguishable from that of the present case. Further contention of Mr. Sahoo, learned counsel for the petitioner, is that deduction of tax from the petitioner and deposit of such tax with the State Government being unauthorized, the same is unjust enrichment on the part of the State and thus the said tax is refundable to the petitioner. In support of his contention he relied upon the judgment of this court in Brajendra Mishra [1994] 92 STC 17 (Orissa). For the reasons stated hereinbefore it cannot be said that the deduction of tax from the petitioner and deposit of such tax with the Government is unauthorized. Moreover, decision of this court in Brajendra Mishra [1994] 92 STC 17 (Orissa), is of no help to the petitioner in view of the decision of the honourable Supreme Court in the case of Shree Digvijay Cement Co. Ltd. v. Union of India [2003] 2 SCC 614, wherein the honourable Supreme Court held that the doctrine of "unjust enrichment" is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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