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Himachal Pradesh High Court · body

1998 DIGILAW 196 (HP)

KAMAL KUMAR SHARMA v. STATE OF HIMACHAL PRADESH

1998-10-28

KAMLESH SHARMA, SURINDER SARUP

body1998
JUDGMENT Ms. Kamlesh Sharma, J.—The petitioner being HP PWD Contractor since 10.5.1983 has executed various works of buildings or bridges etc. under Himachal Pradesh Public Works Department, for which materials were carted to the sites by—making purchases from both within and outside the State of Himachal Pradesh as per the requirement of the works during the period from 1987 to 1991. The precise grievance of the petitioner is that for making assessment of sales tax under the Himachal Pradesh General Sales Tax Act (hereinafer called as the Act) for the period 1987-88 \o 1990-91. The Commissioner Excise and Taxation has not permitted the concessional rate of 4% being the rate prescribed for the sale made to the Government and has charged the rate of 7% for want of Form D\ which was required to be issued by respondents 4 to 6. According to the petitioner despite his requests/representations/notice under Section 80, C.PC. respondents 4 to 6 did not issue Form D\ which gave him cause of action to file the present petition seeking the following reliefs:— (a) That the respondent Nos. 4 to 6 be directed to issue the requisite certificate for the purchases made by them of goods in which the property had been transferred to them by way of execution of the works contract awarded to the petitioner and executed by him and consequently pay the tax at the rate of 4% on the said purchases. (b) That the respondent No. 3 be directed to review the assessment keeping in view the issue of the certificate and be also prohibited to make recoveries of the additional so created as per the orders dated 13.2.95. 2. Respondents 2 and 3, 1, 4 and 5 and 6 have filed separate reply (s) affidavits(s) to resist the writ petition. The stand of respondents 2 and 3 is that, "the concessional rate of tax 4% can only be charged for the sale made to the Government as per Clause 8 of notification No. 1-15/73-E & T (Sectt.) dated 29.5.1974, provided a certificate in form stated in the para of such sale is furnished by the dealer to the Assessing Authority. Since the petitioner failed to procure the said certificate in this form from respondent Nos. 4 to 6 and as such the petitioner was assessed 7% as is evident from Annexures P-3 to P-6. Since the petitioner failed to procure the said certificate in this form from respondent Nos. 4 to 6 and as such the petitioner was assessed 7% as is evident from Annexures P-3 to P-6. The replying respondents can only charge concessional rate of 4% tax for the sale made to Government Department on furnishing of declaration as stated above. The respondents No. 4 to 6 are to submit the certificate in accordance with the provisions of the Act, rules made there under and notification issued under the Act ibid" 3. In the reply-affidavit filed on behalf of respondents 1,4 and 5 number of preliminary objections including that of delay and laches and maintainability have been taken. It is stated that the relationship of the petitioner/contractor with the Public Works Department is solely governed by the contract/agreement executed between them; Clause 25 of which pertains to settlement of disputes by arbitration and Clause 38 provides that sales tax or any other tax on materials in respect of the contract shall be payable by the contractor and the Government shall not entertain any claim whatsoever in this respect. Referring to notification dated 31.7.1993 (Annexure R-ll) it is further stated that an amount equal to 2% of payment to the contractor for execution of the works contract is to be deducted as tax under Section 12(a) of the Act. Accordingly, the stand of respondents 1,4 and 5 is that no Form DJ was issued as there is no provision in the agreement, more specifically, Clause 38 thereof for issuing any such form. The stand of respondent No. 6 as revealed from his reply-affidavit is also on similar lines. Referring to Clause 10 of the agreement executed between the petitioner and respondent No. 6 it is pointed out that whatsoever material was to be supplied by the Department its rates were clearly depicted in Clause 43 of the contract agreement. 4. In the rejoinder to the reply(s) affidavit(s), the petitioner has reiterated that Form D’/certificate was required to be issued by respondents 4 to 6 according to the provisions of the Act, rules made there under and the notification issued under the Act for the purchases made by them, in the absence of which the petitioner could not avail concessional rate of tax. According to the petitioner the cause of action lastly arose to him on 13.2.1995 when the assessment for the years 1987-88 to 1990-91 was finalised, as such, the petition does not suffer from delay and laches. 5. We have heard learned Counsel for the parties and gone through the record. It is not in dispute that by the 46th amendment of the Constitution, clause 29-A was inserted to Article 366 to grant sanction to the State Government to levy tax on the sales which otherwise were not falling within the purview of the definition of the word sale. The relevant para of Clause 29-A is:— "(29-A) "tax on the sale or purchase of goods" includes— (a) tax on the transfer, otherwise than in pursuance of a contract, of property in any goods for cash, deferred payment or other valuable consideration; (b) tax on the transfer of property in goods (whether as goods or in some other form) involved in the execution of works contract; (c)........................." In pursuance to this clause the State of Himachal Pradesh started charging tax on the value of goods, property whereof is transferred in the execution of the works contract. Accordingly, notification No. 1-15/73 E&T (Sectt.) dated 29.5,1974 was issued by the Governor of Himachal Pradesh in exercise of the powers under Section 6 of the Act prescribing the rates of sales tax that there shall be levy on the taxable turnover of a dealer with effect from 1st June, 1974, a tax at the rate of 7 paise in a rupee, provided :— "(1).............. (2) ..................... (3) ..................... (4)..................... (5) ..................... (6) ..................... (7) ..................... (8) the rate of tax on the sale of any goods made to Government of India or any State Government shall be (four) paise in a rupee, provided a certificate in the following form in respect of such sale is furnished by the dealer to the Assessing Authority— CERTIFICATE (To be used when making purchases by Government not being a registered dealer). Original Duplicate Name of issuing Department (whether State Government or Government of India). Name of issuing Department (whether State Government or Government of India). Name and address of office of issue. Name and address of office of issue. To ....................................(Seller) Certified that the goods ordered for in our purchase order. To ....................................(Seller) Certified that the goods ordered for in our purchase order. No.................................................... Name of issuing Department (whether State Government or Government of India). Name and address of office of issue. Name and address of office of issue. To ....................................(Seller) Certified that the goods ordered for in our purchase order. To ....................................(Seller) Certified that the goods ordered for in our purchase order. No.................................................... dated.................................................purchased from you as per bill/cash memo stated below. No.................................................... dated................................................ purchased from you as per bill/cash memo stated below. Supplied under your challan No...................................................... Supplied under your challan No...................................................... dated..................................................are purchased by or on behalf of the department of.......................... dated..................................................are purchased by or on behalf of the department of.......................... Signature.......................................... Date: designation of the authorised officer of the Department 0/ 0........................................................ Signature......................................... Date: designation of the authorised officer of the Department 0/ 0........................................................ Seal of the authorised officer of the department. Seal of the authorised officer of the department. Strike out whichever is applicable.Name and complete address of the seller together with his registration certificate number. Particulars of Bill/Cash Memo. Dated..............................No................. Strike out whichever is not applicable. Name and complete address of the seller together with his registration certificate number. Particulars of Bill/Cash Memo. Dated..............................No................. Amount.................................................. (Note: to be furnished by the selling dealer). 0/0 Authorised Officer means an officer authorised to make a purchase on behalf of the Government." Amount................................................. (Note: to be furnished by the selling dealer). 0/0 Authorised Officer means an officer authorised to make a purchase on behalf of the Government." (9) ..................... (10)..................... (11)..................... (12).....................” 6. The constitutional validity of the 46th Amendment of the Constitution whereby Clause (8) was inserted to Article 366 has been upheld by the Constitution Bench of the Supreme Court in Builders Association of India and others, v. Union of India and others, (1989) 2 SCC 645, holding that the object of the new definition of the word sale is to enlarge the scope of "tax on sale or purchase of goods" wherever it occurs in the Constitution so that it may include within its scope the transfer, delivery or supply of goods that may take place under any of the transactions referred to in sub clauses (a) to (f) thereof where ever such transfer, delivery or supply becomes subject to levy of sales tax. So construed the expression "tax on the sale or purchase of goods" in Entry 54 of the State List, therefore, includes a tax on the transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract also. The tax leviable by virtue of sub-clause (b) of Clause (29-A) of Article 366 of the Constitution thus becomes subject to the same discipline to which any levy under Entry 54 of the State List is made subject to under the Constitution. The law laid down in Builders Association of India (supra) was reiterated by the Supreme Court in an another Constitution Bench judgment in M/s. Gannon Dunkerley and Co. and others v. State of Rajasthan and others, (1993) 1 SCC 364. 7. From the provisions of the Act and the notification referred to hereinabove, it is clear that the tax payable on the sale of any goods made to the State Government was 4% provided a certificate in Form D was furnished to the Assessing Authority. So far the present case is concerned, it is not in dispute that the material supplied by the Department to the petitioner for the execution of the works allotted to him were the goods sold to the Government on which sales tax was leviable at the concessional rate of 4% instead of 7% had Form D been furnished to the Assessing Authority. In the reply-affidavit on behalf of respondents 2 and 3 i.e. Commissioner, Excise and Taxation and the Assessing Authority, it is admitted in paragraph 12. "The respondents No. 4 to 6 are to submit the certificate in accordance with the provisions of the Act, rules made there under and notification issued under the Act ibid." On the other hand, the other respondents have denied their liability to issue Form D stating that there is no provision of law or clause in the agreement executed between either of them and the petitioner conferring legal or contractual obligation on them. No doubt the Assessing Authority and the Commissioner, Excise -and Taxation, Himachal Pradesh could charge concessional rate of 4% tax for the sales made by respondents 4 to 6 only if the petitioner had produced Form D issued by respondents 4 to 6. 8. No doubt the Assessing Authority and the Commissioner, Excise -and Taxation, Himachal Pradesh could charge concessional rate of 4% tax for the sales made by respondents 4 to 6 only if the petitioner had produced Form D issued by respondents 4 to 6. 8. Therefore, the question for determination is whether respondents 4 to 6 have failed in their statutory duty by not issuing Form D to the petitioner despite his requests/ representation/notice under Section 80C.P.C? The stand taken by them is too technical that there is no provision of law or the clause in the agreement(s) directing them to issue Form D. But if we jointly read the amended definition of sale, clause (8) of the notification and the form of certificate (Form D) given under the proviso (8), it is clear that the Department which makes purchase as envisaged by these provisions of law are bound to issue Form D to enable the dealer contractor, like the petitioner, to avail concessional rate of tax, otherwise the very purpose of providing concessional rate of tax by the Legislature will be defeated and these provisions will remain on papers only. It appears that either the contract agreement for the works in question stood already executed before the amendment or the forms of the contract agreement were not made upto date after the amendment, for which reason no provision is found in the contract agreement in respect of the concessional rate of sales tax on the goods sold to the Government. In this view of the matter, Clause 38, as referred to by respondents 1, 4 to 6 is of no consequence that sales tax or any other tax on materials in respect of the contract shall be payable by the contractor and the Government shall not entertain any claim whatsoever in this respect. It is not in dispute that the sales tax leviable on the materials sold to the Government is payable by the petitioner as a contractor but the only dispute is whether the rate of tax payable by him is 4% or 7%. There is no reason to deny the concessional rate of 4% to the petitioner by with holding Form D by the Department to whom the goods were sold by the petitioner to deny him the concessional rate. There is no reason to deny the concessional rate of 4% to the petitioner by with holding Form D by the Department to whom the goods were sold by the petitioner to deny him the concessional rate. Therefore, we reject the contention raised on behalf of respondents 4 to 6 that they are not under any statutory or contractual obligation to issue Form D to the petitioner, in the absence of which he has been denied the concessional rate of 4% of sales tax and has been assessed 7% by the Assessing Authority for the years 1987-88 to 1990-91. 9. In the result, in order to do justice to the petitioner we direct respondents 4 to 6 to issue requisite certificate (Form ‘D) for the purchases made by them of goods in which the property had been transferred to them by way of execution of the works contract awarded to the petitioner and executed by him. We further direct the Assessing Authority respondent No. 3 to review assessment keeping in view the issue of the certificate (Form D). In view the of these directions the interim order dated 28.6.1995 staying recovery will continue till the review of the assessment. The writ petition is allowed in these terms. No order as to costs. Writ petition allowed.