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Judgment
Heard Sh. R.K.Gupta, Senior counsel assisted by Sh. Udhay Bhaskar, learned counsel for the petitioner, Sh. P.S.Chandel, learned Central Government Standing Counsel for the respondents and Sh. K.D.S.Kotwal, learned Deputy Advocate General for respondent Nos. 4 and 5.
Under the Circular No. 1 of 2016 dated 14th March 2016, in order to effectively comply with the judgment and order dated 29.05.2015 passed by the Division Bench of this Court in OWP No. 419 of 2014, Pardeep Electrical and Builders Pvt. Ltd & Another vs. State of J&K and Others, it was provided that in the contracts which are inclusive of all taxes, deduction of sales tax at source shall be made by the Government strictly as per the provisions of Rule 19 (d) of the J&K General Sales Tax Rules, 1962 (for short ‘the Rules’). The said Rule provides for a formula to collect the tax at source.
The said provision, i.e. Rule 19 (d) of the Rules reads as under:-
“19 (d) If a dealer has not charged the tax on sale of goods separately but included in the sale price the tax included therein shall be determined on the basis of the following formula:
Rate of tax x Aggregate of sale price
100+Rate of Tax”
The argument of Sh. R.K. Gupta is that the respondents are wrongly applying the said formula and, as such, are deducting tax at a higher rate, therefore, the petitioner is entitled to refund the said excess tax.
Even accepting that the tax at source is being deducted at a higher rate, it causes no prejudice to the petitioner as whatever tax is so deducted, it will be given due adjustment in the final assessment of the tax liability of the petitioner whereupon if not satisfied, petitioner may take recourse to the remedy of appeal which if preferred shall be considered on its own merits without being influenced by this order.
In view of the above, we do not deem it necessary to exercise our discretionary jurisdiction in the matter.
The petition is dismissed.