2011 (9) TMI 883 - HC - VAT and Sales Tax

Court directs amendment to align tax rules with Supreme Court guidelines for works contracts

Larsen & Toubro Limited Versus State of Orissa and Others

The court found that the absence of detailed provisions for deductions in Section 11(2)(c) of the Orissa Value Added Tax Act and Rule 6(e) of the Orissa ... Whether section 11(2)(c) read with rule 6(e) should provide for various deductions as set out/prescribed by the honourable Supreme Court in Gannon Dunkerley's case [1992 (11) TMI 254 - SUPREME COURT OF INDIA] for the purpose of determining taxable turnover in case of a works contract? Held that:- Absence of provisions for various deductions in section 11(2)(c) and rule 6(e) in line with the judgment of the honourable Supreme Court in Gannon Dunkerley's case [supra] certainly creates uncertainty, so far levy of tax on works contract is concerned. To avoid such uncertainty, the State Government is directed to amend rule 6(e) to bring in line with judgment of the honourable Supreme Court in Gannon Dunkerley's case vis-a-vis section 11(2)(c) of the OVAT Act. Till such amendment is made to rule 6(e) of the OVAT Rules, the Commissioner of Sales Tax is directed to issue suitable instructions to all the taxing authorities to allow various deductions from the gross turnover to arrive at the taxable turnover in respect of works contract in terms of decision of the honourable Supreme Court in Gannon Dunkerley's case. WP allowed. Issues Involved:1. Validity and workability of Section 11(2)(c) of the Orissa Value Added Tax Act, 2004 (OVAT Act).2. Validity and workability of Rule 6(e) of the Orissa Value Added Tax Rules, 2005 (OVAT Rules).3. Compliance with deductions prescribed by the Supreme Court in Gannon Dunkerley's case.Detailed Analysis:1. Validity and Workability of Section 11(2)(c) of the OVAT Act:The petitioner argued that Section 11(2)(c) of the OVAT Act, which provides for deductions towards labour, service charges, and other like charges, does not cover all deductions as prescribed by the Supreme Court in Gannon Dunkerley's case. The court noted that Section 11(2)(c) is meant to compute the taxable turnover of sales by deducting charges towards labour, services, and other like charges from the gross turnover. However, the court acknowledged that the deductions must align with the Supreme Court's guidelines in Gannon Dunkerley's case for the provision to be workable and valid.2. Validity and Workability of Rule 6(e) of the OVAT Rules:The petitioner contended that Rule 6(e) of the OVAT Rules, which allows deductions only for labour and service charges, fails to include 'other like charges' as mandated by Section 11(2)(c) of the OVAT Act. The court observed that Rule 6(e) does not provide for deductions towards 'other like charges,' making it inconsistent with Section 11(2)(c) and the Supreme Court's ruling in Gannon Dunkerley's case. The court emphasized that for the statute to be workable, the rules must cover all necessary deductions.3. Compliance with Deductions Prescribed by the Supreme Court in Gannon Dunkerley's Case:The court highlighted that the Supreme Court in Gannon Dunkerley's case specified various deductions to be considered when determining the taxable turnover in works contracts, including:- Labour charges for execution of the works.- Amount paid to sub-contractors for labour and services.- Charges for planning, designing, and architect's fees.- Charges for hiring machinery and tools.- Cost of consumables like water, electricity, and fuel.- Cost of establishment related to labour and services.- Other similar expenses related to labour and services.- Profit related to labour and services.The court noted that Rule 6(e) fails to provide these detailed deductions, leading to uncertainty in the levy of tax on works contracts. The court stressed that taxation laws must be certain, clear, and unambiguous, and the absence of detailed provisions for deductions in Rule 6(e) creates uncertainty, making the statute unworkable.Conclusion:The court concluded that the absence of provisions for various deductions in Section 11(2)(c) and Rule 6(e) in line with the Supreme Court's judgment in Gannon Dunkerley's case creates uncertainty in the levy of tax on works contracts. Consequently, the court directed the State Government to amend Rule 6(e) to align with the Supreme Court's guidelines and Section 11(2)(c) of the OVAT Act. Until such amendments are made, the Commissioner of Sales Tax is instructed to issue suitable guidelines to ensure compliance with the Supreme Court's decision in Gannon Dunkerley's case.Judgment:The writ petition was allowed with the aforementioned observations and directions.