TaxTMI 
TaxTMI 
2021 (9) TMI 52
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....as awarded a work order for laying/ installation of pipes through HDD technology in the city of Agartala by one Kazstrov Services Infrastructure India Private Limited (KSS, in short) on 21.12.2010. For execution of the said work the petitioner obtained a registration under the then in force Tripura Value Added Tax Act (TVAT Act, for short) in January, 2021. In the course of the execution of the work order the petitioner as a service provider paid service tax to the Central Excise and Service Tax Department, Government of India by depositing or adjusting service tax. 3. In the course of payment of the bills to the petitioner-company KSS had deducted tax of Rs. 24,21,007/- during the year 2011-12. It appears that the said action was taken by KSS under the direction of the Superintendent of Taxes. The petitioner, therefore, wrote to the Superintendent of Taxes, Charge-V on 18.08.2011 and explained the detailed mode of execution of the work in order to point out that the petitioner is a service provider and is exigible to service tax. However, in absence of any transfer of material or machinery during the course of execution of the work, no sale takes place as per the provision....
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....me barred. However, for the assessment period of 2013-14 time limit was up to 31.03.2019 which had not till then expired. 8. The petitioner thereupon approached the revisional authority under the TVAT Act and sought refund of the tax collected in excess. The revisional authority, i.e. Commissioner of Taxes passed an order on 18.12.2018 in which he came to the conclusion that he cannot take cognizance against the communication sent by the Superintendent of Taxes. The revision petition was dismissed. 9. The petitioner thereafter filed further revision petition before the High Court being CRP No.43 of 2019 and challenged the order passed by the revisional authority on 18.12.2018. This petition was disposed of by an order dated 24.11.2020 observing that the revisional authority was not wrong in holding that the communication issued by the Superintendent was not open to revision. However, it would be open for the petitioner to institute appropriate proceedings as may be advised. Thereupon the present petition has been filed. 10. The case of the petitioner is brief namely that under the insistence of the Superintendent of Taxes from the bills of the petitioner KSS was compelled to ded....
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....ed." 12. The record would thus suggest that the petitioner from the beginning objected to any collection of tax from its payment for execution of the work in question. According to the petitioner there was no transfer of property in course of execution of work and, therefore, tax under TVAT Act was not exigible. According to the petitioner, it was liable to pay service tax which it had paid. The Superintendent of Taxes, however, prima facie formed a belief that on the imports made by the petitioner for execution of the work value added tax had to be paid. In the present case, we are not concerned with the correctness or validity of the rival stands. What was of importance is that this issue had to be decided by a formal order to be passed by the Superintendent. Since the petitioner had objected to collection of tax from its running bills, the Superintendent had to take into account the petitioner's objection and pass a formal order either accepting or rejecting the objections which can be done only through assessment to be made in case of the petitioner for the period in question. If this assessment was adverse to the petitioner, he had a right of appeal. 13. The Superintendent d....
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....ner, the Superintendent had to make an assessment for the period in question and appropriated the provisionally collected amount towards the petitioner's tax liability under the TVAT Act if the Superintendent was finally of the opinion that such tax was payable. Any such decision, as observed earlier, would be open to challenge in the form of appeals and revision. The Superintendent by not passing the assessment order, cannot terminate the petitioner's dispute of taxability of the transaction at his level without any opportunity to file appeal, that too without passing any order of assessment. In plain terms, the Superintendent has not expressed his own legal opinion of the vital question of taxability of the transaction in question. Any appropriation of tax in such a manner would be without authority of law. 14. Reference in this respect may be made to a decision of the Supreme Court in case of Commissioner of Income Tax vs. Shelly Products reported in 229 ITR 383 (SC) in which the question of refund of the tax deposited by the assessee by way of advance tax, self assessment tax or tax deducted at source when the assessment had become time barred came up for consideration. It was....