TaxTMI 
TaxTMI 
TaxTMI 
2008 (1) TMI 844
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.... so that the entire matter can be disposed of at this stage when the State respondents filed their counter-affidavit. Today, when the matter is taken up for hearing, Mr. Nath, learned State Counsel has placed the instructions as given by the Commissioner of Taxes, Government of Tripura, wherein it is stated that before first amendment of the Tripura Value Added Tax Act, 2004 relating to entry No. 15 of the Schedule II(a) and entry No. 117 of the Schedule II(b), the tax on "bearing" sold as spare part of motor vehicle was 12.5 per cent, not four per cent, as the spare parts and accessories of motor vehicles include "bearing" as mentioned in paragraphs 16 and 17 of the counter-affidavit. The said provisions of entry No. 15 of the Schedule II(a) and entry No. 117 of Schedule II(b) of the Tripura Value Added Tax Act have already been amended by way of the Tripura Value Added Tax (Amendment) Act, 2007 (for short, "the TVAT Act, 2007"), to the effect that entry No. 15 of the Schedule II(a) be deleted because "bearing" is also motor parts taxable under entry No. 117 of the Schedule II(b) and "bearing" used as machine parts is taxable under serial No. 106 of the Schedule II(b) and "bearing....
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....hen it is taxable at four per cent under entry No. 25 of the Schedule II(a) and serial No. 2 of the notification dated June 8, 2006. As the decision of respondent No. 3 was against the statutory provisions of the VAT Act, 2004, the petitioner made a prayer before the Commissioner of Taxes so that the petitioner can deposit the value added tax on sale of "bearing" at four per cent as collected and it was also pointed out that the clarification given by the Assistant Commissioner of Taxes vide annexure C to the writ petition is contrary to and inconsistent with the provisions of law. In response to the letter dated May 29, 2006, the Assistant Commissioner of Taxes informed the petitioner by a letter dated June 20, 2006 that if "bearing " is used in a manner other than that mentioned in the letter dated May 15, 2006, then it is taxable at four per cent under entry No. 15 of the Schedule II(a) of the VAT Act, 2004 (annexure E to the writ petition). Being aggrieved by the said action of the Revenue authority, the petitioner filed a writ petition before this court to get proper redress, which was registered as W.P. (C) No. 330 of 2006. On August 30, 2006, after hearing the part....
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....ficate only for batteries and parts, lubricants and components and spare parts of motor vehicle and the 'bearings' imported with the strength of his registration for the purpose specified is liable to pay VAT at 12.5 per cent. 17.. That, in reply to the averments and/or contention made in paragraph 11 of the writ petition I state that, the VAT on 'bearings' at entry No. 15 of the Schedule II(a) is four per cent but this is not applicable to the dealer-petitioner since he possesses registration certificate for 'components and spare parts of motor vehicle' and is liable to pay VAT at 12.5 per cent according to entry specified for the purpose." Mr. Saha, learned counsel for the petitioner, submits that the communications dated May 15, 2006, June 20, 2006 and October 20/26, 2006 (annexures C, E and G, respectively) are not issued in accordance with the statutory provisions of the TVAT Act, 2007, rather those communications confused the petitioner and similarly situated businessmen, for which the State of Tripura amended the aforesaid VAT Act, 2004 in the month of October, 2007 by way of the TVAT Act, 2007 and by the said amended Act, amongst others, the Legisl....
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....ther provisions as indicated in annexure C communication dated May 15, 2006 will at all be applicable. But in spite of the aforesaid order, the Revenue authority did not consider the same in the light of the observations of this court. According to him, had the stand of the Revenue authority stood correct, then the authority would not have come with subsequent amendment, therefore, according to Mr. Saha, that the petitioner collected four per cent tax on selling of "bearing " is not its fault. But as confused by the provisions of the statute, the petitioner collected four per cent of value added tax on "bearing". Mr. Saha finally submits that it is not possible for a seller like the petitioner to know for what purpose the purchasers are purchasing the "bearing". It is only the purchasers who can say for what purpose "bearings" are purchased by them and it would not be proper for the revenue authority or the State Legislature to fix the rate of tax differently for one item considering its nature and use for which any such decision of the revenue authority is contrary to the provisions of article 14 of the Constitution. Per contra, Mr. N. C. Pal, learned Government Advocate, while....
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....With reference to your letter No. MAV/AK/02 dated May 29, 2006 this is to inform you that if 'bearing' is used other than that mentioned in this office letter vide No. 1-3(2)/Tax/2005/6247 dated May 15, 2006 then it is taxable at four per cent under entry No. 15 of the Schedule II(a) of the TVAT Act, 2004. Yours faithfully, (B. K. Jamatia) June 20, 2006 Asstt. Commissioner of Taxes Government of Tripura No. F. 1-3(2) TAX/2005/16807 GOVERNMENT OF TRIPURA Office of the Commissioner of Taxes, Palace Compound: Agartala Date: 20th/26 October, 2006 To M/s. Mahamaya Agencies Laxmi Narayan Bari Road Agartala Sub: Charging collection of VAT on 'bearing' under the Tripura Value Added Tax Act, 2004. Ref: Order passed on August 30, 2006 in W.P. (C) No. 330 of 2006 by the honourable Division Bench and your prayer dated September 18, 2006. Sir, Abiding by the 'order' passed on August 30, 2006 in W.P. (C) No. 330 of 2006 by the honourable Division Bench and considering your prayer dated September 18, 2006 the matter of charging/collection of VAT on selling of 'bearings' for use in automobile part under the Tripura Value Added Tax Act, 2004 at....
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....bmissions of the learned counsel for the parties. The respondents-Revenue authorities themselves were in confusion about the rate of value added tax on sale of "bearing", as the "bearings" are used for various purpose in various machines like bicycles, tractors and boats, some are used for agricultural purpose and some for pisciculture and some are automobile, but as there is no specific entry regarding "bearing" except in entry No. 15 of the Schedule II(a), for clarification, the subsequent amendment was made, wherein tax on "bearing" is shown as at 12.5 per cent for all purpose. Now the question that arises for proper decision of the matter is as to whether the Revenue authority has the power to claim different rates of taxes from any of the dealers/sellers on sale of "bearing" than the rates prescribed in specific entry of the Schedule, i.e., on entry No. 15 of the Schedule II(a) of the VAT Act, 2004 for the period before amendment of the said Act in the year 2007. For proper appreciation and also to give a proper decision, it is necessary to reproduce the entry No. 15 of the Schedule II(a), entry Nos. 18, 95 of the Schedule II(a) as well as entry No. 117 of Schedule II....
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....this time it is settled by various courts of the country including the apex court that when one particular item or article is covered by one specified entry, then Revenue authority is not permitted to travel to the residuary entry of Schedule to take the help of doctrine of inclusion what the Revenue did in this case taking help from entry 117 of the Schedule II(b) of unamended VAT Act. The aforesaid views of this court gets support from the decision of the apex court in the case of Hindustan Poles Corporation v. Commissioner of Central Excise, Calcutta reported in [2006] 145 STC 625; [2006] 6 RC 403 ; [2006] 4 SCC 85 wherein it stated " It is settled law that when one particular item is covered by one specified entry, then the Revenue is not permitted to travel to the residuary entry. The residuary entry is meant only for those categories of goods which clearly fall outside the ambit of specified entries." According to this court, when the statute prescribed a particular rate for a particular article by a specific entry in the Schedule of VAT Act, 2004 irrespective of the nature of use, the revenue authority has no right to claim any other rate except the rate mentioned. They can....