TaxTMI 
TaxTMI 
2014 (9) TMI 373
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....rials placed on record and the relevant provisions of the Tripura Value Added Tax Act, 2004, along with the Rules framed thereunder, we are of the view that the petitioner has been able to make out a prima facie case that deduction, at the flat rate of four per cent, from the gross bill of the petitioner, as a contractor, in works contract, and collection of VAT, at the enhanced flat rate of six per cent, from the gross bill of the petitioner, as a contractor, in works contract, and further levying the enhanced rate of deduction at six per cent of VAT, even in respect of the pending bills and levying of enhanced rate of deduction, as VAT, at eight per cent and orders of assessment, the demand notices and the orders of attachment, are contrary to the scheme of the Tripura Value Added Tax Act, 2004, and the Constitutional scheme of levy of tax on works contract. Considering, therefore, the matter in its entirety and in the interest of justice, it is hereby directed that until further order, the impugned Memorandum, dated June 25/30, 2005, notifications, dated September 21, 2011, November 16, 2011 and August 1, 2012, and also the impugned orders of assessment, the demand notices an....
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....ier notifications issued by the Staterespondents are no longer in force. Thus, it is not necessary to pass any interim order so far these memoranda/notifications (annexures P/2, P/3 and P/4 to the said writ petition being W.P. (C) No. 440 of 2012) are concerned. Dr. Saraf, learned senior counsel assisted by Mr. Roy, learned counsel appearing for the Revenue, has contended further that the similar prayers have been replicated in the present writ petition along with some additional prayers but the nature and contour of the writ petition hardly have any distinguishable variation. Dr. Saraf, learned senior counsel, has referred the prayers made in the previous writ petition being W.P.(C) No. 440 of 2012 for making comparison with the prayers made in the present writ petition being W.P. (C) No. 72 of 2013 and contends that except some very insignificant additional reliefs the challenge remains the same. He has further contended that the petitioner has deliberately suppressed the pendency of an identical writ petition on the same subjectmatter and between the same parties being W.P. (C) No. 440 of 2012 and the interim order dated September 18, 2012 as passed in C.M. Appl. No. 359 of 2....
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....nce by us with the deduction, at source, shall not, in any way create any impediment on the part of the respondents to make assessment, in accordance with law, as regards the taxable liability of the petitioners and/or realization thereof by resorting to law contained in that behalf. Considering the fact that it has been submitted, on behalf of the State respondents, that the taxable liability, if any, of the petitioners would be determined in accordance with law, within a period of three months from today, we presently do not direct the State-respondents to refund the deducted amount to the petitioners, but make it clear that if the respondents fail to determine, in accordance with law, the taxable liability, if any, of the petitioners within the said period of three months from today, the petitioners shall remain at liberty to claim refund of the amount(s), which have been deducted, at source, from the running bills of the petitioners. It is also made clear that after fixing the taxable liability, if any, of the petitioner, the balance amount, if any, shall be made available to the petitioners within four weeks from the expiry of the said period of three months. Coupled wit....
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.... and of the High Court under article 226 of the Constitution is extraordinary, equitable and discretionary. Prerogative writs mentioned therein are issued for doing substantial justice. It is, therefore, of utmost necessity that the petitioner approaching the writ court must come with clean hands, put forward all the facts before the court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the court, his petition may be dismissed at the threshold without considering the merits of the claim. 35. The underlying object has been succinctly stated by Scrutton, L.J., in the leading case of R. v. Kensington Income-tax Commissioners [1917] 1 KB 486; 86 LJ KB 257; 116 LT 136 (CA) in the following words (KB page 514): . . . it has been for many years the rule of the court, and one which it is of the greatest importance to maintain, that when an applicant comes to the court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts-it says facts, not law. He must not misstate the law if he can help it-the cou....
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....representation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the court, the court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on the merits. If the court does not reject the petition on that ground, the court would be failing in its duty. In fact, such an applicant requires to be dealt with for contempt of court for abusing the process of the court." Dr. Saraf, learned senior counsel, further states that the apex court in K.D. Sharma [2008] 12 SCC 481, has also observed that: "49. 'Strongly disapproving' the explanation put forth by the petitioner and describing the tactics adopted by the federation as 'abuse of process of court', this court observed All India State Bank Officers Federation v. Union of India [1990] Supp SCC 336 (SCC pages 340 and 341, para 9): '9. . . .There is no doubt left in our minds that the petitioner has not only suppressed material facts in the petition but ha....
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....39 Comp Cas 169 (SC); [2007] 8 SCC 449, contended that it is of utmost necessity that when a party approaches the High Court he must place all the material facts without any reservation inasmuch as the High Court would be exercising its extraordinary jurisdiction under article 226 of the Constitution. If there is suppression of material fact on the part of the applicant that would receive an apposite and equal repulse. He has strongly contended that for such exercise of fraud, suppression of material fact as well as for abuse of the process of the court which are extremely deplorable, the writ petition should be scuttled without considering the merit and at the threshold. Finally, Dr. Saraf, learned senior counsel, has contended that the impugned order of assessment is appealable under section 69 of the Tripura Value Added Tax Act, 2004 which provides that: 69. Appeal: (1) Any dealer objecting to an order of assessment or penalty passed under this Act, may, within thirty days from the date of the service of such order, appeal to the prescribed authority against such assessment or penalty: Provided that (i) no appeal shall be entertained by the said authority unless, he ....
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....as to be understood and examined in the given context of the case. Having referred to S.J.S. Business Enterprises (P) Ltd. v. State of Bihar as reported in [2004] 121 Comp Cas 99 (SC); [2004] 7 SCC 166, where the apex court while, considering a case of almost similar circumstance, held that (pages 106 and 107 in 121 Comp Cas): "As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the courts to deter a litigant from abusing the process of court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case. It must be a matter which was material for the consideration of the court, whatever view the court may have taken (King v. General Commissioners for the purposes of the Income-tax Acts for the District of Kensington [1917] 1 KB 486 (CA)). Thus when the liability to income-tax was questioned by an applicant on the ground of her non-residence, the fact that she had purchased and was maintaining a house in the country was held to be a material fact the suppression of wh....
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....urt in State of Jharkhand v. Voltas Ltd., East Singhbhum as reported in [2007] 7 VST 317 (SC); [2007] 9 SCC 266, as where the apex court held in para 12 as under: "In our considered opinion sub-clause (i) of clause (a) of section 21(1) read with rule 13A of the Rules did not make sub-clause (1) fully workable because the manner and extent of deduction relating to any other charges has not been provided/prescribed by the State." According to Mr. Deb, learned counsel for the writ petitioner, rule 7A of the Tripura Value Added Tax Rules is peri materia to rule 13A of the Bihar Sales Tax Rules and as such that decision would attract in the present case. He has also made a reference in Larsen & Toubro Ltd. v. State of Bihar reported in [2004] 134 STC 354 (Patna), where the Patna High Court held that it would also be necessary to refer to the judgment of Gannon Dunkerley & Co. v. State of Rajasthan [1993] 88 STC 204 (SC); [1993] 1 SCC 364, to appreciate that how the provisions are to be made workable and what particular items are taxable in a works contract and what particular deductions are to be made from the works contractor. In absence of any prescription or any other charge....
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....tion for availability of effective statutory remedy, Mr. Deb, learned counsel for the writ petitioner having referred to a decision of the apex court in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai reported in [1998] 8 SCC 1 has contended that: "15. Under article 226 of the Constitution, the High Court, having regard to the facts of the case, has discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the fundamental rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case law on this point but to cut down this circle of forensic whirlpool we would rely on some old decisions of the evolutionary era of the constitutio....
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.... abruptly by Mr. N.C. Paul, learned Government Advocate for the Revenue respondents) by the writ petitioner in its perspective. However, the contention of Dr. Saraf, learned senior counsel, cannot wholly be sustained that the Revenue was permitted by the said order dated September 18, 2012 to deduct the tax at the eight per cent on the taxable turnover on account of the service charges and other charges which were not taxable on the turnovers, anterior to August 1, 2012. It cannot be denied that the writ petitioner has suppressed some facts, which were apparently material to the dispute as raised in the present writ petition. Therefore, the interim order dated March 12, 2013, stands modified and the direction that until further order the impugned memorandum dated June 25/30, 2005, the notification dated September 21, 2011, the notification dated November 26, 2011 and the notification dated February 1, 2011, shall remain suspended is hereby vacated. However, that part of the impugned assessment order for the years 2007-08, 2008-09, 2009-10, 2010-11 and 2011-12 whereunder in absence of any books of accounts the value towards the labour service charges and the other like charges ha....