Sunil Kumar Garodia @ Sunil Garodia vs The State of Bihar

R.M. Doshit, C.J.—This petition under Article 226 of the Constitution is filed by a landlord against the action of the tenant, the Bihar Textbook Publishing Corporation Ltd., the Respondent No. 2 herein (hereinafter referred to as "the Corporation") in deducting 4% of the amount of rent against the Value Added Tax to be passed over to the State of Bihar.

Learned advocate Mr. Pradeep Kumar No. 1 has appeared for the Petitioner. He has submitted that the Petitioner owns certain godowns in the city of Patna. The godowns have been leased to the Corporation under the lease agreement dated 23rd January 2009. The said lease still subsists. He has submitted that the rent recoverable from a tenant is not liable to Value Added Tax under the Act of 2005. The Corporation has wrongly deducted 4% of the rent at source towards Value Added Tax.

The Petitioner is aggrieved by the action of the Corporation in not remitting the full amount of rent payable to the Petitioner and in deducting 4% of the rent against the Value Added Tax payable under the Bihar Value Added Tax Act, 2005.

Learned Advocate Mr. Piyush Lal has appeared for the State of Bihar. He admits that the rent recoverable under a Lease Agreement is not exigible liable to Value Added Tax under the Act of 2005.

Learned Advocate Mr. Sandeep Kumar has appeared for the Corporation. He has submitted that in case the rent is not exigible to Value Added Tax, the Corporation will not deduct any part of rent towards the Value Added Tax. He admits that thus far the Corporation has already deducted a sum of Rs. 1,12,705/- being 4% of the rent payable up to March 2010. He agrees to remit the aforesaid sum of Rs. 1,12,705/- to the Petitioner.

He further submits that the aforesaid sum of Rs. 1,12, 705/- has been deposited in the Government Treasury.

7.In above view of the matter, it is not in dispute that the amount of rent payable by the Corporation to the Petitioner is not exigible to Value Added Tax. The action of the Corporation in deducting 4% of rent against Value Added Tax was without the authority of law and was illegal. The Corporation is therefore, directed to remit the aforesaid sum of Rs. 1,12,705/- to the Petitioner within 15 days from today. In the event, the Corporation fails to remit the aforesaid sum of Rs. 1,12,705/- as directed, the Petitioner will be entitled to interest at the rate of 10 % per annum commencing from Ist January 2011 till the date of payment.

The Corporation may apply to the State Government either for refund of the aforesaid sum of Rs. 1,12,705/- deposited by it or for adjustment of the aforesaid sum of Rs. 1,12,705/- against the liability to deduct Value Added Tax at source in respect of its other transactions. Such an application made by the Corporation will be processed by the State Government and necessary order will be made as early as possible but not after more than four weeks from the date such application is made by the Corporation.

The petition is allowed in the above terms.