TaxTMI 
TaxTMI 
TaxTMI 
2015 (2) TMI 472
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....ged in the business of construction and development of the Krishnapatnam Deep Water Port in Nellore District, and in providing necessary infrastructural facilities for handling port operations thereat. It is the petitioners case that they were identified as being the most qualified to undertake construction and infrastructure activities of the port for, and on behalf of, the State of Andhra Pradesh; consequent thereto, a state concession contract was entered into by the State of Andhra Pradesh represented by its Principal Secretary, Roads and Buildings Department, with them on 17.09.2004; the said agreement which was to subsist for a period of 50 years inter alia, amongst other terms and conditions, provided for necessary fiscal incentives to them in respect of various fiscal levies imposed by the State in connection with the construction and development of the port project; in view of the state concession contract, the relationship between the State of Andhra Pradesh and KPCL is that of a principal and an agent; Clause 3.16 of the said contract provided for exemption from sales tax (VAT from 2005 onwards) on all inputs and sales, if any, deemed; sales tax was totally exempt on all....
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.... fact, no taxes were deducted by them; even otherwise, as per the concessionaire agreement dated 17.09.2004, the Government had exempted sales tax on all the inputs required for project construction; the petitioner is, therefore, not liable to deduct tax; the statutory auditors had clarified, by issuing certificates, that no deduction was made in respect of the EPC contract; only a provision, for works contract tax liability, was made in the accounts; this was disclosed as a statutory liability in the accounts; such disclosure is mandatory in order to meet the audit requirements, and cannot be construed as their having deducted tax; the 3rd respondent, in the impugned order, held that a limited review of their accounts revealed that they had deducted tax at source from September, 2007 to March, 2013; in their reply to the show-cause, KPCL had categorically stated that they were ready and willing to produce the material evidence required by the 3rd respondent; the impugned order was passed without considering the material on record, relying only upon the annual accounts; the 3rd respondent ignored accounting principles under which a provision is made to meet tax liability, and erron....
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....as not deducted tax as alleged by the 3rd respondent; if the 3rd respondent is allowed to enforce the demand against the petitioner, the same would hamper progress of the project; and it would consequently affect not only the petitioners interest, but also larger public interest. In his counter-affidavit, the 1st respondent submits that the petitioner had filed the Writ Petition without exhausting the efficacious alternative remedy of an appeal under the AP VAT Act; the writ jurisdiction is not meant to short-circuit or circumvent the alternative remedies available under the Act; the petitioner has made false and incorrect statements on oath; in para 11 of their affidavit they stated that they did not recover any tax from the contractor, and the records maintained by them establish that, while clearing the running account (RA) bills, no amount was deducted from NECL; from the records submitted by the petitioner before him it was established that they had deducted amounts towards works contract tax in each of the running account (RA) bills; false statements have been made by the petitioner only to mislead this Court; he had relied on, and had referred to, the running account bills ....
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....ation came into force with effect from March, 2006, and was to remain in force till April, 2010 or the completion of project whichever was earlier; the said GO stipulated that the taxes paid by the petitioner, or their contractors or sub-contractors, shall be refunded within 30 days from the date of submission of their claims; in notification-II, annexed to the said GO, it was stated that the tax paid under Section 4(7) of the Act, for execution of the works contract relating to the project work of the petitioner, would be refunded on production of proof of remittance of the tax deducted at source in accordance with Section 22(4) of the Act; the State Government has not granted any exemption to the petitioner under the said G.O; the G.O. only enabled the contractor, who paid the tax on execution of the works contract, to obtain refund from the Government including the tax paid on purchase material used for construction of the port; the subject matter of the G.O. does not relate to purchases made by the petitioner, but to the works contract undertaken by the contractor of the port; the petitioner is not the beneficiary of the G.O; on verification of the annual report, for the year 2....
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...., liable to deduct and remit amounts towards TDS; Section 22(4) mandates that, if the contractee does not deduct or deducts but does not remit TDS, such amounts are liable to be recovered from the contractee as unpaid tax; the petitioner is holding Rs. 92.98 Crores of government money deducted by them as TDS from the contractor; the petitioner cannot retain money due to the Government for its private purpose; and the Writ Petition is devoid of merits. In the affidavit filed in reply thereto, the petitioner reiterated that they did not recover any tax from the contractor; the records maintained by them establish that, while clearing the running account (RA) bills, no amount was deducted from NECL; the records submitted by them to the 1st respondent would show that they did not deduct amounts towards TDS on works contract in each of the running account (RA) bills; they did not make any false and misleading statements before this Court; they had only made a provision to meet the tax liability; the concession agreement, between them and the Government, subsists for a period of 50 years; clause 3.16 thereof provides for exemption from sales tax on all inputs and deemed sales; it is for....
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....to Krishnapatnam port, to the non-payment of TDS under Section 22(4) by the petitioner, the notice of recovery dated 12.09.2013, and to the contents of the petitioners letter of objections dated 24.09.2013 and 08.11.2013, 30.11.2013 and 08.1.2013. The 1st respondent held that NECL could claim refund of the tax on the inputs used in the execution of works contract to KPCL; there was no express provision exempting the assessee from subjecting the payments, made to the contractor through R.A. bills, to TDS; the Commercial Tax Department was merely seeking remittance of the tax deducted at source as mirrored by the petitioners accounts, as it would otherwise amount to unjust enrichment; the contractor and the contractee are two separate assessable entities in the eye of law; as a contractee, the petitioner had rightly subjected the payments, made to the contractor, to TDS; the default was in non-payment; the petitioner companys auditors had qualified their report stating that TDS payments have not been remitted; G.O.Ms. No.609 dated 29.05.2006 refers only to refund, and does not permit retention of the sums collected; the moment any sum is deducted by the assessee, the deducted sum bec....
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....ed Senior Counsel appearing on behalf of the petitioner, would submit that KPCL had entered into a revised concession agreement with the State of Andhra Pradesh on 17.09.2004 for construction of the Krishnapatnam Port on a Build, Own, Share and Transfer (BOST) basis; in terms thereof, they are not liable to pay sales tax on the inputs required for project construction; by clause 3.16 of the revised concession agreement, GoAP undertook to forego revenue streams in various forms as per the 2001 Act, more specifically exemption from sales tax on the inputs required for project construction; no restrictions were placed on such exemption; the counter-affidavit of the 3rd respondent merely supports his order, without dealing with the revised concession agreement dated 17.09.2004; for the period prior to April, 2010 (i.e., during September, 2007 to March, 2008, 2008-09 and 2009-10) KPCL had remitted Rs. 16,63,79,337/-, Rs. 11,06,35,978/-, and Rs. 8,30,63,846/- towards TDS; the balance TDS deductible was remitted to the works contractor as an advance; these deductions were made in view of G.O.Ms. No.609 dated 29.05.2006, though there was no liability as per the agreement; these TDS amounts....
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.... provide for exemption as was provided under the APGST Act; clause 2.3 also provides for a remedy in circumstances of a change in Law; G.O.Ms. No.609, by itself, falls within the meaning of changes in law; alternatively G.O.Ms. No.609 can be construed as remedying the situation arising from the enactment of the AP VAT Act; under clause 2.3, the GoAP has insulated itself from liabilities arising from a change in the tax laws; the petitioner was required to comply with the obligations under the changed tax law; in the light of clause 2.3 of the agreement, on the enactment of the AP VAT Act and issuance of GO.Ms. No.609, clause 3.16 stood replaced/overruled; Clause 2.3, 13.2 and 13.3 make clause 3.16 of the agreement subservient to the provisions of the new tax law in this case the AP VAT Act; the contention, urged on behalf of the petitioner, that, if there is no tax liability, the revenue cannot claim that TDS should be paid first, and refund can be sought later, is not tenable; KPCL is under an obligation to comply with the provisions of the AP VAT Act and GO Ms.No.609; and, as such, they are liable to deduct TDS from the amounts paid to NECL, and remit the same to the Government. ....
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....ancing, construction, operation and maintenance of infrastructure projects in the State, to provide a comprehensive legislation for reducing administrative and procedural delays, identifying generic project risks, detailing various incentives, detailing the project delivery process, and also to provide for other ancillary and incidental matters thereto, with a view to presenting bankable projects to the private sector, and to improve the level of infrastructure in the State of Andhra Pradesh. Section 1(3) of the 2001 Act made the Act applicable to all infrastructure projects implemented through a public private partnership in the sectors enumerated in Schedule III thereto, and to such other sectors as would be notified by the Government under the Act from time to time. Section 2(h) of the 2001 Act defines concession agreement to mean a contract of the nature specified in Schedule-I between the developer and the State Government relating to any infrastructure project, or such other contract as may be prescribed, from time to time, by the Government. Section 2(j) defines construction to mean any construction, reconstruction, rehabilitation, improvement, expansion, addition, alteratio....
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.... petitioner, cannot be read in isolation and out of context, and should be read along with the other clauses of the agreement. It is a rule of construction, applicable to all written instruments, that the instrument must be construed as a whole in order to ascertain the true meaning of its several clauses, and the words of each clause must be so interpreted as to bring them in harmony with the other provisions of the instrument, if that interpretation does no violence to the meaning of which they are naturally susceptible. The best construction of deeds is to make one part of the deed expound the other, and so to make all the parts agree. Effect must, as far as possible, be given to every word and every clause. Just as a document cannot be interpreted by picking out only a few clauses ignoring the other relevant ones, in the same way the nature and meaning of a document cannot be determined by its end-result or one of the results or consequences which flow from it. The nomenclature and description is not determinative of the real nature of the document or of the transaction thereunder. These have to be determined from all the terms and clauses of the document and all the rights and....
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....cution of the agreement. Clause 2.6 defined commercial operations date to mean the date on which KPCL was entitled to commence deep water operation of the Port in accordance with the provisions of the agreement. Clause 2.7 defined concession to mean the exclusive right and authority granted by GoAP to KPCL for designing, financing, building, owning, maintaining, operating and transferring an all weather, deep water, multi-purpose port at Krishnapatnam together with a right to levy, collect and retain appropriate port dues and tariffs for port services rendered to port users during the concession period. Clause 2.8 defined concessionaire to mean KPCL; and Clause 2.9 defined concession period to mean the period of concession as specified in Clause 3.3. Clause 2.44 defined Taxes and Duties to mean and include all taxes and duties including stamp duties payable as per the law of the land in connection with all port related activities. Clause 3.3.1 stipulated that concession period shall mean the period commencing from the date of execution of the agreement, for development of the Krishnapatnam Port, dated 04.01.1997 and ending on the expiry of 30 years from the commercial operations da....
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....urchases effected by him and specified in the said notification. Section 15(2) enables the Government to issue any notification under Section 15(1) so as to be retrospective from any day not earlier than the appointed day, and such notification would take effect from the date of its publication in the Gazette or such other earlier or later date as may be mentioned therein. Under Section 15(3), applications for refunds are required to be made in duplicate to the Commissioner within a period of six months from the date of purchase, or as the Government may prescribe in the notification, and must be accompanied by the purchase invoice in original. The power conferred on the State Government, under the AP VAT Act, is only to grant refund of the tax paid by the dealer, on the purchases effected by them, and not to exempt them from payment of tax either on the purchase or the sale of goods. Clause 2.3 of the revised concession agreement relates to change in law, Relief under Change in law and changes in Tax Laws. It defines change in law to mean the occurrence or coming into force, after the submission of the detailed proposal, (a) the enactment of any new Indian law and (b) the repeal ....
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....2 of the agreement, to comply with the provisions of the AP VAT Act including Section 22(3) thereof, and deduct works contract tax at source from the running bills of the contractor i.e., NECL. Further clause 13.3, under the head Taxes and Duties required KPCL to pay all taxes as defined earlier in the Agreement which, at any time, may be levied by any Government authority upon KPCLs interest in or activities covered by the Agreement. Reliance placed on behalf of KPCL, on clause 3.16 of the revised concession agreement, to contend that they are entitled for exemption from payment of value added tax till completion of the project, even after AP VAT Act came into force, is therefore misplaced. As shall be referred to in detail hereinafter, even during the period when G.O.Ms. No.609 dated 29.05.2006 was in force, KPCL did not remit the tax, deducted by them from the running account bills of NECL, to the Government in its entirety. The contention that they did not make payment subsequently, as there was no undertaking to make any refund, is merely an afterthought, and has been urged only for the purposes of this Writ Petition. Even otherwise absence of any notification, under Section....
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....the Act" in Section 195(1), must be given weightage; further Section 195 used the word `payer', and not the word "assessee"; the payer was not an assessee; the payer became an assessee-in-default only when he failed to fulfill the statutory obligation under Section 195(1); and if the payment did not contain the element of income, the payer cannot be made liable. The statutory obligation imposed by Section 22(3) of the A.P. VAT Act on KPCL, (a company registered under the Companies Act, 1956), is to deduct, from out of the amounts payable by them to NECL, in respect of the works contract executed for them, an amount calculated at the prescribed rate, and to remit such amount to the Government. It is not even the case of KPCL that the deemed sale of goods, involved in the execution of the works contract, by NECL is not liable to tax under the A.P. VAT Act. Their justification for not deducting tax at source from the running bills of NECL and in not remitting such tax, deducted at source from the bills of NECL, to the Government is that they are exempt from tax not under the A.P. VAT Act but under clause 3.16 of the revised concession agreement entered into with the GoAP. Relianc....
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....e is a broad distinction between the provisions contained in the statute in regard to exemptions from tax or refund or rebate of tax on the one hand, and the non-liability to tax or non-imposition of tax on the other. In the former, but for the provisions as regards exemption or refund or rebate of tax, the sales or purchases would have to be included in the gross turnover of the dealer because they are, prima facie, liable to tax and the only thing which the dealer is entitled to, in respect thereof, is the deduction from the gross turnover in order to arrive at the net turnover on which tax can be imposed. In the latter, the sales or purchases are exempt from taxation altogether. If they are thus not liable to tax, no tax can be levied or imposed on them, and they do not come within the purview of the Act at all. The very fact of their non-liability to tax is sufficient to exclude them from calculation of the gross turnover, as well as the net turnover, on which sales tax can be levied or imposed. (Bhawani Cotton Mills Ltd. (1967) 20 STC 290 (SC) ; A. V. Fernandez v. The State of Kerala AIR 1957 SC 657; and Messrs. Chatturam. Horilram Ltd. v. Commissioner of Income-tax, Bihar AIR....
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....ilarly the Annual Report, for the years 2010-11, shows the amount in arrears as Rs. 4056.20 lakhs; the Annual Report for the year 2011- 12 discloses TDS arrears as Rs. 6101.04 lakhs; the ledger of NECL, in the books of KPCL, for the years 2009-10, 2010-2011 and 2011- 2012 show that KPCL had, in fact, deducted tax at source; and the Statements, for the years 2009-2010, 2010-11 and 2011-12, contain the following information (a) Date of running bill, (b) Value of the work, (c) Amount deducted and credited to Works Contract Account, (d) Amount credited to Income Tax TDS account, (e) balance credited to NECL, (f) the total amount of works contract tax deducted, remitted to the Government, and the balance tax payable, (g) the balance tax payable being carried forward, and (h) amounts shown in the Annual Report as undisputed (crystallised) arrears. Section 22(3) of the A.P. VAT Act requires a company, registered under the Companies Act, 1956, to pay, from out of the amounts payable by them to a dealer in respect of the works contract executed for them, an amount calculated at such rate as may be prescribed; and for the company (contractee), deducting tax at source, to remit such amount i....
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....he period for which the amount was so deducted, on production of the certificate furnished by the contractee. Rule 18(4) stipulates that, where the contractee fails to remit such tax deducted at source within 15 days of the date of payment to the contractor, the person, authorised to make payment and to deduct tax, shall be liable to pay interest, for the delayed payment, as may be applicable under the Act. In reply to the show cause notice issued by the 3rd respondent dated 12.09.2013, for the tax period from September, 2007 to March, 2013, the petitioner stated, in their letter dated 23.09.2013, that the records maintained by them categorically established that no amount was recovered while clearing the R.A. bills. Along with the said reply the petitioner filed two statements, the first is the statement of the works contract tax and TDS details as per their books, and the second statement is as per the show cause notice dated 12.09.2013, which shall be referred to in detail later in this order. Along with their reply dated 23.09.2013, the petitioner also enclosed a certificate of their Chartered Accountant dated 28.11.2013 wherein details of the EPC work done bills, and payments....
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....2-2009 By (as per details) Capital work in progress TDS Payable Works Contract Tax (Being RA-7 received towards Phase-I) Journal 38,66,33,250.00 Dr 77,32,665.00 Cr 1,54,65,330.00 Cr 36,34,35,255.00 5-2-2010 By (as per details) Capital work in progress TDS Payable Works Contract Tax (Being RA-7 received towards Phase-II) Journal 58,99,60,800.00 Dr 1,17,99,216.00 Cr 2,35,98,432.00 Cr 55,45,63,152.00 05-02-2010 By (as per details) Capital work in progress TDS Payable Works Contract Tax (Being RA-7 received towards Phase-II) Journal 47,02,61,500.00 Dr 94,05,230.00 Cr 1,88,10,460.00 Cr 44,20,45,810.00 Similar journal entries were passed in the books of accounts of KPCL for the years 2010-11 and 2011-12 also. It is wholly unnecessary for us to burden this judgment with all the other entries. Suffice it to hold that the ledger account of NECL, in books of accounts of KPCL, itself shows that works contract tax was deducted from the RA bills of NECL. From out of the capital work in progress KPCL has deducted, among others, works contract tax and has given NECL credit only for the balance amount. It is only the net amount which, on their ac....
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....ioner along with their reply to the show- cause notice, in the remarks column. The figures in the tabular statement tally with the figures in the Auditors reports enclosed as part of the Annual reports of KPCL, and supports the submission of the respondents that KPCL had deducted tax at source towards works contract tax, and did not remit such tax deducted at source, in its entirety, to the Government. Along with their Writ Petition, KPCL has enclosed a comparative statement (filed by them along with their letter dated 23.09.2013 submitted in reply to the show cause dated 12.09.2013). The first statement relates to WCT/TDS details as admitted by KPCL, and the second statement is as shown in the show cause notice issued by the first respondent on 12.09.2013. It is useful to extract both these statements. Statement of WCT TDS details as per KPCL Tax period Total TDS Amount Amount paid Balance Sept, 07 to Mar,08 166,379,337 166,379,337 179,494,040 2008-09 290,129,018 110,635,978 187,449,951 2009-10 270,513,797 83,063,846 167,051,680 2010-11 240,955,280 73,903,600 337,150,513 2011-12 404,445,693 67,295,180 58,657,....
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....t, they were disabled from continuing to grant KPCL such exemption after the AP VAT Act came into force. As Section 15(i) of the Act enabled them to issue a notification providing for grant of refund, GoAP, having found it necessary to do so in the public interest, issued G.O.Ms. No.609 Revenue (CT-II) Department dated 29.05.2006, directing that the tax paid:- a). By M/s. Krishnapatnam Port Company Ltd to their sellers on the purchase of all inputs for construction of Krishnapatnam Port; b). By the contractors and sub-contractors, if any, engaged by or for Krishnapatnam Port Ltd on their purchases of all inputs used for construction of M/s. Krishnapatnam Port under the provisions of the said Act; shall be refunded to the respective purchasers subject to the following conditions: (1). The goods purchased by M/s. Krishnapatnam Port Company Ltd or its contractors or sub-contractors must be for or use or consumption in the execution of the project work of Krishnapatnam Port. (2). M/s. Krishnapatnam Port Company Ltd shall furnish a separate declaration dul....
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....he tax deducted at source, after 2010-11, was paid to NECL as advance, has been urged for the first time in the written arguments filed after hearing of the Writ Petition had concluded, and is neither reflected in the affidavit filed by KPCL in support of the writ petition, nor in the affidavit filed by them in reply to the counter-affidavit filed on behalf of the respondents. No material has been placed before us to support this contention. In any event, having deducted TDS from the running account bills of NECL, KPCL was statutorily obligated to remit the said amount to the Government, and not pay it as advance to NECL. As NECL was liable to pay tax under the AP VAT Act, for execution of the works contract of construction of the Krishnapatnam Port, KPCL was statutorily obligated, under Section 22(3) of the AP VAT Act, to deduct tax at source from the running account bills of NECL, and remit the deducted tax amount to the Government. The fact that NECL could seek refund of the tax paid, in view of G.O.Ms. No.609 dated 29.05.2006, did not absolve KPCL of their statutory obligation to deduct tax at source. Even on a notification being issued under Section 15(1) of the AP VAT ....
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....ded to effect a legal relationship; and KPCL had acted upon the said promise and had complied with its obligations under the concession agreement. Learned Senior Counsel would also invoke the doctrine of legitimate expectation to contend that KPCL had a legitimate expectation to be exempted from payment of sales tax till completion of the Krishnapatnam Port Project. There can be no estoppel against the Government in the exercise of its legislative, sovereign or executive powers. (Kasinka Trading v. Union of India (1995) 1 SCC 274 ; Excise Commissioner, U.P. v. Ram Kumar (1976) 3 SCC 540). While the doctrine of promissory estoppel is applicable against the Government also, particularly where it is necessary to prevent fraud or manifest injustice, the doctrine cannot be pressed into aid to compel the Government or the public authority to carry out a representation or promise which is contrary to law or which is outside the authority or power of the officer of the Government or of the public authority to make. The doctrine of promissory estoppel cannot be invoked in the abstract, and Courts are bound to consider all aspects including the results sought to be achieved and the pu....
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....isappointment of the legitimate expectations of a person, would be to set the Court adrift on a featureless sea of pragmatism. Moreover, the notion of a legitimate expectation (falling short of a legal right) is too nebulous to form a basis for invalidating the exercise of a power when its exercise otherwise accords with law. (Union of India v. Hindustan Development Corpn. (1993) 3 SCC 499 ; Attorney General for New South Wales; S. Raghunathan(). As has been referred to hereinabove, the revised concession agreement provides for a situation where there is a change in law. It requires the agreement to be suitably amended to bring it in conformity with the change in law. Having failed to do so, it is not now open to KPCL to contend that exemption from payment of sales tax should be continued, notwithstanding that it would then fall foul of the provisions of the A.P. VAT Act, on the application of the doctrine of legitimate expectation. The contention that the doctrine of legitimate expectation and promissory estoppel are attracted does not, therefore, merit acceptance. V. HAS KPCL MADE FALSE STATEMENTS ON OATH IN THE WRIT AFFIDAVIT AND THE REPLY AFFIDAVIT? Sri P. Balaji Varma, Learn....
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....ion, refers to the reply submitted by KPCL to the show cause notice issued by 3rd respondent, wherein KPCL had stated that they had not recovered any tax from the contractor, and the records maintained by them establish that, while clearing the running account bills, no amount was deducted from NECL. In para 12 of the writ affidavit it is stated that the account books of KPCL categorically make it clear that, in fact, no taxes were deducted by the petitioner and only a provision for works contract tax liability was made in the accounts. Again in para 16 of the writ affidavit it is reiterated that KPCL had not deducted tax as alleged by the 3rd respondent. In para 3 of their counter affidavit the 3rd respondent, while referring to the averments in the writ petition, stated that KPCL has made incorrect and false statements, and the writ petition is liable to be dismissed on that ground. In reply thereto KPCL, at para 3 of their reply affidavit, while denying that they had made false statements in the writ affidavit, stated:- when there is no deduction from the contractor, the allegation of deduction in the running account (RA) bills and its reflection in the ledger account is just a....