TaxTMI 
TaxTMI 
2015 (1) TMI 412
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..../IBBF/2442 dated 29.12.2007 for package TR-05 IV NIT No. 70064/BF/NIT/ Fencing/ 1552 dated 08.09.2007 V Work Order No. 5/102/IBBF/055 dated 10.04.2007 for package TR-06 V NIT No. 70064/BF/NIT/ Fencing/ 1068 dated 23.12.2006 VI Work Order No. 5/103/IBBF/057 dated 10.04.2007 for package TR-10 VI NIT No. 70064/BF/NIT/ Fencing/ 1068 dated 23.12.2006 VII Work Order No. 5/104/IBBF/059 dated 10.04.2007 for package TR-11 VII NIT No. 70064/BF/NIT/ Fencing/ 1077 dated 23.12.2006 VIII Work Order No. 5/105/IBBF/061 dated 10.04.2007 for package TR-12 VIII NIT No. 70064/BF/NIT/ Fencing/ 1077 dated 23.12.2006 IX Work Order No. 5/106/IBBF/063 dated 10.04.2007 for package TR Link-7 IX NIT No. 70064/BF/NIT/ Fencing/ 1077 dated 23.12.2006 X Work Order No. 17/403/IBBF/1260 dated 08.08.2009 for package TR01 (Road) X NIT NO.70064/IBBF/NIT/ TR&MZ/537 dated 21.05.2009 XI Work Order No. 8/200/IBBF/1262 dated 08.08.2009 for package TR Link-Joymoni para. XI NIT No.70064/IBBF/NIT/ TR&MZ/ 537 dated 21.05.2009 XII Work Order No. 04/77/IBBW/1014 dated 16.02.2012 for package TR-13 to TR-15(R). XII NIT No. 70064/I....
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....g the tax at source in pursuance of section 4(3) of the Tripura Value Added Tax Act, 2004 read with rule 7(1) of the Tripura Value Added Tax Rules, 2005 as the statute provides that the deduction of tax at the time of payment, every person responsible for paying any sum to any person on account of works contract and right to use any goods for any purpose, shall at the time of credit of such sum to account of the person or at the time of payment thereof in cash or by issue of a cheque or draft or any other mode, deduct such amount towards sales tax (not being more than the total tax payable by the dealer) as may be prescribed. There is no dispute that the petitioner is neither the contractor nor the person to whom the payment would be made by the dealer on account of the works contract. However, the petitioner independently has approached this court to challenge the vires of rule 7(1) of the Tripura Value Added Tax Rules, 2005 on the ground that the said tax as is sought to be deducted having been part of the amount situates outside the purview of entry 54 List II of the Constitution of India and that the said entry is to be exercised subject to the restrictions as provided. An addi....
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....renuously argued that since the tax is being deducted from the petitioner in pursuance of the impugned provision, the petitioner is definitely "an aggrieved person". In support of his contention he also relied on the decision of the apex court in Nathpa Jhakri Jt. Venture v. State of Himachal Pradesh as reported in [2000] 118 STC 306 (SC); [2000] 3 SCC 319. In that case the appellant had called in question the validity of section 12A of the Himachal Pradesh General Sales Tax Act, 1968 and rule 31A of the Himachal Pradesh General Sales Tax Rules before the High Court of Himachal Pradesh as that provision provided for deduction of an amount from the bills or invoices of the works contractors purporting to be tax payable towards transfer of goods involved in the works contract. The High Court took the view that the relevant amount is the valuable consideration payable for the transfer of property in goods and not the entire value or consideration for the entire works contract and what was directed to be deducted is only an amount not exceeding four per cent as may be prescribed purporting to be a part or full of the tax payable on such sales which would necessarily mean tax payable un....
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....ities to pay the tax. The apex court while dealing with the issue of locus standi held that (page 574 in 147 STC): "Before we part with the case, it would be appropriate to remind the Legislatures of what was stated in Bhawani Cotton Mill's case [1967] 20 STC 290 (SC); AIR 1967 SC 1616 that if a person is not liable for payment of tax at all, at any time, the collection of a tax from him, with a possible contingency of refund at a later stage, will not make the original levy valid, because if sales or purchases are exempt from taxation altogether, they can never be taken into account, at any stage, for the purpose of calculating or arriving at the taxable turnover and for levying tax. The view was reiterated in Steel Authority of India's case [2000] 118 STC 297 (SC); [2000] 3 SCC 200 and Nathpa Jhakri's case [2000] 118 STC 306 (SC); [2000] 3 SCC 319. In the latter case, it was noted, echoing the view in Bhawani Cotton Mill's case [1967] 20 STC 290 (SC); AIR 1967 SC 1616 that it is no solace to say that such a person can get refund after completion of assessment. If the principles indicated in these cases are followed, large number of unnecessary litigations can b....
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....rt therein has discussed as obiter the question of locus standi. The core issue in that case can be availed of from the following passage (page 304 in 118 STC): "13. There can be no doubt, upon a plain interpretation of section 13AA, that it is enacted for the purposes of deduction at source of the State sales tax that is payable by a contractor on the value of a works contract. For the purposes of the deduction neither the owner nor the Commissioner who issues to the contractor a certificate under section 13AA(5) is entitled to take into account the fact that the works contract involves transfer of property in goods consequent upon of an inter-State sale, an outside sale or a sale in the course of import. The owner is required by section 13AA(1) to deposit towards the contractor's liability to State sales tax four per cent of such amount as he credits or pays to the contractor, regardless of the fact that the value of the works contract includes the value of inter-State sales, outside sales or sales in the course of import. There is, in our view, therefore, no doubt that the provisions of section 13AA are beyond the powers of the State Legislature for the State Legislature ....
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....i and as such this petition is not maintainable. On considering the challenge of the petitioner, this court is countenance with the irresistible view that the petitioner has got no locus standi to invoke the jurisdiction under article 226 of the Constitution of India for calling the validity of rule 7(1) of the Tripura Value Added Tax Rules, 2005 in question or for praying other consequential reliefs as stated. Moreover, from the work-orders as awarded by respondent No. 4 it is apparent that the petitioner agreed to pay the category of the tax which includes the works contract tax/VAT. The decision in Haroop v. Bayley as reported in 25 LJ. MC 107 holds that a person who has consented expressly or impliedly to a thing cannot be said to be "aggrieved" by it. The rationale so provided in Haroop as reported in 25 LJ. MC 107 has strongly persuaded us. If the petitioner is aggrieved by any action of respondent No. 4, the remedy is definitely not under article 226 of the Constitution of India inasmuch as there is an arbitration clause in each of the work orders as emanated from the agreements, which is extracted hereunder: "15 Both the parties shall make efforts to settle the disput....