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Judgment
Heard Mr. A. Sengupta, learned counsel appearing for the petitioner as well as Mr. A.L. Saha, learned counsel appearing for the ONGC-respondents.
By means of this petition, the petitioner who is a contractor by profession and who had carried out earth work for Gojalia GCS at Sabroom area, Sub Head No.1 for cutting earth and filling the Lunga with heavy machineries including grading of site [Agreement No.AGT/ES/CIVIL/T-1/10(1534)/16-17/AG-18 dated 06.02.2017, [Annexure-1 to the writ petition] vide the work order dated 25.01.2017, has urged this court to direct the respondents to refund a sum of Rs.12,52,907/- which has been deducted from the first RA bill of the petitioner as Value Added Tax (VAT). The incidence of deduction of that sum of Rs.12,52,907/- has not been refuted by the respondents [see Para-11 of the reply].
According to the respondents, in terms of the condition of the works-contract, VAT has been deducted at 6% from the lump-sum bill and hence, the petitioner cannot challenge the action of the respondents.
Mr. A.L. Saha, learned counsel appearing for the ONGC-respondents has in furtherance of that plea submitted that the respondents have only deducted the tax which is leviable under the Tripura Value Added Tax Act, 2004.
Mr. A. Sengupta, learned counsel appearing for the petitioner has submitted that in terms of the memorandum under No.F.I-7(11)-TAX/87/PART-II dated 08.01.2013 for the earth cutting or earth filing work, no tax is exigible in terms of the said memorandum dated 08.01.2013. In Gannon Dunkerley versus State of Rajasthan reported in (1993) 88 STC 204 (SC), the apex court has clearly held that the value of the goods involved in the execution of works contract will have to be determined by taking into account the value of the entire works contract and deducting therefrom the charges towards labour and services which would cover:
(i) Labour charges for execution of the works;
(ii) Amount paid to a sub-contractor for labour and services;
(iii) Charges for planning, designing and architect's fees;
(iv) Charges for obtaining on hire or otherwise machinery & tools used for the execution of the works contract;
(v) Cost of consumables such as water, electricity, fuel etc. used in the execution of the works contract the property in which is not transferred in the course of execution of a works contract;
(vi) Cost of establishment of the contractor to the extent it is relatable to supply of labour & services;
(vii) Other similar expenses relatable to supply of labour and services;
(viii) Profit earned by the contractor to the extent it is relatable to supply of labour and services;"
Accordingly, attention of all the Heads of Offices/D.D.O.'s of the State Government, Central Government, Autonomous Bodies/P.S.U. of Central & State Government, etc. was invited. Since the ONGC is the authority responsible for deduction of tax at source under Section 4(3) of the TVAT Act, 2004, they are also bound by the said memorandum of the Finance Department [Taxes and Excise]. The memorandum/communication dated 08.01.2013 is on the impact of the decision of Gannon Dunkerley(supra). Even if, the ONGC-respondents have deducted the tax at 6% amounting to Rs.12,52,907/-, the question remains to be answered is whether that has been illegally deducted or deducted in excess. That can only be determined by the Commissioner of Taxes. But the Commissioner of Taxes or the Superintendent of Taxes who are delegated with the power of Commissioner of Taxes are not made party in the writ petition.
Section 43 of the TVAT Act, 2004 clearly provides that the Commissioner shall, refund the amount of taxes, if any paid in such excess of the amount due from a dealer.
It is apparent that the petitioner ought to have approach the Commissioner of Taxes seeking the remedy in respect of the deduction as made by the ONGC-respondents, which according to him has been done illegally, particularly to get the refund in accordance with Section 43 of the TVAT Act.
Hence, this writ petition is not maintainable in the perspective facts as canvassed in the writ petition. However, the petitioner is given liberty to approach the Commissioner of Taxes by laying his grievance in respect of unauthorized deduction or deduction in excess and to seek refund of the said amount which according to him is Rs.12,52,907/-. The petitioner shall approach the Commissioner of Taxes within a period of three months from the day of receiving a copy of this order. It is needless to say that the Commissioner of Taxes, Government of Tripura shall enquire into the allegations/grievances of the petitioner and pass the reasoned order in accordance with law.
No order as to costs.
A copy of this order be served on the counsel for the parties.