2016 (10) TMI 853 - HC - VAT and Sales Tax

High Court Invalidates Explanation V of TN Sales Tax Act 2002

The State of Tamil Nadu, The Commercial Tax Officer Versus M/s. Taher Ali Industries & Projects (P) Ltd.

The High Court held that Explanation V under Section 2(1)(aa) of the Tamil Nadu Additional Sales Tax Act, introduced by Amendment Act 23 of 2002, was ... Constitutional authority of Explanation V under Section 2(1)(aa) of the Tamil Nadu Additional Sales Tax Act, 1970 - explanation contrary to the provisions of law - Works Contract Service - pay tax under Section 7-C of the TNGST Act - levy of additional sales tax - explanation added to clear the provisions of law - Held that: - the Explanation normally should be read so as to harmonise with and clear up any ambiguity in the main section and it should not be so construed as to widen the ambit of the section and also to clarify the doubtful point in law and to serve as a proviso to main section. The claim for additional sales tax by treating the contract value as the taxable turnover is not permissible under the provisions of either the TNGST Act or the Additional Sales Tax Act - there is no error apparent or infirmity in the reasons assigned in the impugned order in allowing the writ petition - appeal dismissed. Issues Involved:1. Constitutionality of Explanation V under Section 2(1)(aa) of the Tamil Nadu Additional Sales Tax Act, 1970.2. Legislative competence of the State to impose additional sales tax on works contracts under the amended provisions.3. Validity of retrospective amendment to the Tamil Nadu Sales Tax Act.4. Impact of the judgment in South India Corporation Ltd. v. Commercial Tax Officer on the current case.Detailed Analysis:Constitutionality of Explanation V under Section 2(1)(aa):The respondent/writ petitioner challenged the constitutional authority of Explanation V under Section 2(1)(aa) of the Tamil Nadu Additional Sales Tax Act, 1970, introduced by Amendment Act 23 of 2002, arguing it was ultra vires the Constitution of India and beyond the legislative competence of the State. The learned Single Judge upheld this plea, declaring the Explanation as ultra vires the Constitution.Legislative Competence:The respondent/writ petitioner contended that their work fell under 'Works Contract' and paid taxes at a compounded rate as per Section 7-C of the TNGST Act. They argued that the additional sales tax under the 1970 Act could only be levied on taxable turnover, not on the total value of works contracts, as there was no statutory provision authorizing such levy. The learned Single Judge observed that imposing sales tax on the total contract value was beyond the State Legislature's competence, as tax could only be imposed on the transfer of goods.Retrospective Amendment:The State of Tamil Nadu introduced Explanations III, IV, and V to Section 2(1)(aa) of the Act by Amendment Act 23 of 2002, with Explanation V applicable to assessees like the respondent/writ petitioner. This Explanation deemed the total value of contracts as taxable turnover for additional sales tax purposes, effective retrospectively from 01.04.1993. The respondent/writ petitioner argued that this retrospective amendment was arbitrary and beyond the legislative competence of the State. The learned Single Judge agreed, stating that the Explanation expanded the scope of the charging section impermissibly.Impact of South India Corporation Ltd. v. Commercial Tax Officer:The respondent/writ petitioner relied on the Division Bench judgment in South India Corporation Ltd. v. Commercial Tax Officer, which held that additional sales tax could not be levied on works contracts where the assessee opted to pay tax under Section 7-C of the TNGST Act. The State introduced Explanation V to circumvent this judgment. The learned Single Judge noted that the Explanation sought to widen the scope of taxable turnover contrary to the provisions of the Act, as established in the Supreme Court judgment in S.Sundaram v. V.R.Pattabhiraman.Conclusion:The High Court, after considering the rival submissions and relevant judgments, found no merit in the appeal. The court held that the impugned Explanation V was contrary to the provisions of the Act and beyond the legislative competence of the State. Consequently, the writ appeal was dismissed, and the order passed in W.P(MD)No.1831 of 2007, dated 27.09.2011, was confirmed.