2022 (9) TMI 1542 - HC - VAT and Sales Tax

Lease rental tax assessment under section 5-E quashed following Supreme Court precedent on property transfer situs

Telangana HC allowed petition challenging assessment order imposing tax on lease rentals under section 5-E of APGST Act. Following Supreme Court's ... Validity of assessment order - imposition of tax on lease rentals under section 5-E of the APGST Act - constitutional validity of section 5E(b) of the APGST Act - HELD THAT:- As held by the honourable apex court in MAFATLAL INDUSTRIES LTD. VERSUS UNION OF INDIA [1996 (12) TMI 50 - SUPREME COURT], the power under article 226 has to be exercised to effectuate the regime of law and not for abrogating it. Even while acting in exercise of the said constitutional power, the High Court cannot ignore the law, nor can it override it. The power under article 226 of the Constitution of India is conceived to serve the ends of law and not to transgress them. In the instant case, since the clause (b) of section 5E of the A. P. Act 6 of 1957 was read down by the honourable apex court as indicated above holding that the situs of sale would be the place where the property in goods passes and not the place of location of the goods where they are put to use, the respondent are under obligation to review the assessment of tax for the years 1995-96 to 1997-98 of the petitioner and consequently, the petitioner is entitled for refund of tax paid by it for the said assessment years. It is borne by record that the tax paid by the petitioner for the assessment years 1995-96, 1996-97 and 1997-98 was Rs. 2,20,880, Rs. 21,17,129 and Rs. 28,35,996 respectively. Therefore, the respondents are directed to refund the tax paid by the petitioner, i. e., Rs. 2,20,880, Rs. 21,17,129 and Rs. 28,35,996 for the assessment years 1995-96, 1996-97 and 1997-98 respectively, to the petitioner, within a period of sixty (60) days from the date of receipt of a copy of this order. Petition allowed. Issues:Challenge to assessment orders for assessment years 1995-96, 1996-97, and 1997-98 under APGST Act for imposing tax on lease rentals under section 5-E, request for refund based on the Supreme Court's decision on the constitutionality of section 5E(b).Analysis:The petitioner, a paper manufacturer in Tamil Nadu, entered into transactions in Andhra Pradesh, paid taxes based on asset location. Following the Supreme Court's decision in 20th Century Finance Corporation case, the petitioner sought a refund for taxes paid in 1995-96 to 1997-98. The respondents, however, argued against revision, citing lack of appeal against original assessment orders.The Supreme Court's ruling on section 5E(b) of APGST Act in the 20th Century Finance Corporation case declared it unconstitutional. The court emphasized that a refund claim based on the unconstitutionality of a provision can be made via a writ petition. The power under article 226 must uphold the law, not override it. The petitioner's entitlement to a refund without filing a separate suit was recognized.The respondents relied on Servet Feeds case to argue against the petitioner's claim for a refund based on another person's case. However, the court distinguished the current case from Servet Feeds, clarifying that the petitioner sought a refund due to the unconstitutionality of the law, not another person's case. The court directed the respondents to refund the taxes paid by the petitioner for the relevant assessment years.In conclusion, the writ petition was allowed, and the respondents were directed to refund the taxes paid by the petitioner within sixty days. Any pending miscellaneous petitions were closed, and no costs were awarded in the matter.