All the cases pertain to similar question of facts and law relating to levy of and deduction at source of sales tax under the related provisions of Tripura Sales Tax Act, 1976 (herein after called the Act) and Rules thereunder as such, as agreed by the parties, all the cases are taken together for hearing and disposal by a common judgment. 2. In all the cases, the vires of the second proviso to section 3(1) of the Act and Rule 3 A (2) of the Tripura Sales Tax Rules, 1976 (herein after called the Rules) have been put under challenge by all the petitioners. 3. The back ground of the case is that the Oil and Natural Gas Corporation Ltd (in short ONGC), Agartala Project and the Gas Authority of India Ltd (in short GAJL), Agartala had been in necessity for hiring good number of vehicles of different classes and in furtherance of their necessity, the ONGC and the GAJL issued Notices Inviting Tender asking the interested parties/transporters to make offer for hire of vehicles for specified period to be used by the ONGC and GAIL for transportation/conveyance of their officers and staff. Pursuant thereto, the petitioners participated in the bid offering their respective rates and having found the rates offered by the petitioners lowest and acceptable, the authorities issued the work orders. The relevant abstracts of few specimen of 'work orders' so issued by the ONGC and GAJL are reproduced below for better appreciation : "M/s Swapan Kumar Paul BK Road, Agartala, Tripura West. Sub : Work order for supply one diesel driven Tourist Ambassador Car Dear Sir, Subject to the terms and conditions contained in the tender/contract No. AGT/ TBG/TPT/Cars/7/97-98 and in continuation to the LOI dated 23.3.98, you are requested to supply a diesel driven Tourist Ambassador Car of model not earlier than 1996 for 12 hours duty on the following rates : For 12 Hours Duty Fixed charge Rs.410 per day (Rs. four hundred ten only) Running charge Rs.3.90 per KM (Rs. three and paise ninety only) Overtime charge beyond 12 hours duty Rs.35 per hour (Rs. thirty five only) Outstation charge Rs. 125 per day (Rs. four hundred ten only) Running charge Rs.3.90 per KM (Rs. three and paise ninety only) Overtime charge beyond 12 hours duty Rs.35 per hour (Rs. thirty five only) Outstation charge Rs. 125 per day (Rs. one hundred twenty five only) Yours faithfully Sd/ Chief Manager (Logistics) ONGC, Agartala" "M/s Chandan Deb Near Circuit House, Kunjaban, PO Abhoynagar, Agartala 799005, Tripura West Sub : Providing 5 Nos Commander Jeep on 12 hours basis against Tender No. GAIL/AGT/Veh/98-99/01 Dear Sir, With reference to your offer against our NIT No. GAIL/AGT/Veh/98-99/01 published in various Dailies of Agartala and Calcutta dated 13.1.99 and 14.1.99 and subsequently your letter dated 27.5.99, we are pleased to award the work to you at the quoted rates and laid down terms and conditions mentioned in the tender document for 5 nos of Commander Jeep (model 1998 onwards) on 12 hours basis immediately. You are, therefore, requested to provide 5 nos Commander Jeep on 12 hours basis immediately. Failure to provide the vehicles requisitioned above within 15 days from the receive if this letter as mentioned in your letter dated 27.5.99, would amount to not acceptance of the offer by you and this letter will stand cancelled. An amount of Rs. 18,000 (Rs one eight zero zero zero only) for each vehicle is to be deposited with GAIL, Agartala in the form of Bank Draft/Bank Guarantee/Cheque if any Nationalised Banks in favour of Gas Authority of India Ltd, Agartala towards security within -IX Mays of receipt of this letter. You are requested to execute an agreement on Non Judicial Stamp Paper of Rs.50(Rs fifty). You are, therefore, requested to confirm the date of deployment of above vehicles hi advance so that we may cancel the arrangement of existing Commander Jeeps. You are also requested to sign the duplicate copy of this letter and return back to us as token of acceptance immediately. Thanking you, Yours faithfully For and on behalf of Gas Authority of India Ltd Sd/ (Barun Biswas) Deputy Manager (HRM)" The petitioners accordingly placed the vehicles as per requirement of the hirers viz, ONGC and GAIL and charged the payment as per agreed rates. All of them also entered into separate agreement regulating the implementation of the terms of contract of supply of vehicles on the requisition of the hirers. Rate of payment, detention charges, mode of payment etc are also incorporated in the agreements. All of them also entered into separate agreement regulating the implementation of the terms of contract of supply of vehicles on the requisition of the hirers. Rate of payment, detention charges, mode of payment etc are also incorporated in the agreements. While the supply of vehicles on requisition are being effected, the State Govt in the Revenue Department issued the impugned memorandum bearing No. F. 1 -7(6)-Tax/92 dated nil, requiring the hirers, viz ONGC and GAIL to deduct 4% amount from the respective bills of the petitioners pursuant to the provision of section 3 A of the Act read with Rule 3 A of Tripura Sales Tax (9th Amendment) Rules, 1989. In some cases, the hirers already started deduction and in some cases deductions are contemplated. Hence the writ petitions. 4. The petitioners challenged the vires of Rule 3A of the Rules on the ground & that there is no charging provision under the Act for levying of sales tax on the transaction of transfer of the right to use any goods and as such the Rules being a delegated legislation, cannot impose and/or dictate for realisation of any tax at source and as such Rule 3 A of the Rules and also the impugned memorandum have been put under challenge. 5. The State Govt and the sales tax authorities contested the cases by filing counter affidavit contending inter alia, that the transaction involved in the present cases are fully covered by the term 'sale' within the meaning of section 2 (g) (ii) of the Act and under the second proviso to section 3 (1) of the Act, tax at the rate of 4% of the consideration money charged on such transaction and for the purpose of carrying out the objects of charging section, the counter affidavits contends, Rule 3 A (2) of the Rules prescribes the mode of recovery of the sales tax and as such according to the counter affidavit, Rule 3A (2) of the Rules and the impugned memorandum are valid and require no interference in these writ petitions. 6. Every transaction of transfer of the right to use any goods for any purpose (whether or not for a specified period) for due consideration, cash and/or on credit is defined to be 'sale' under section 2 (g) of the Act for the purpose of levying and realisation of sales tax. 6. Every transaction of transfer of the right to use any goods for any purpose (whether or not for a specified period) for due consideration, cash and/or on credit is defined to be 'sale' under section 2 (g) of the Act for the purpose of levying and realisation of sales tax. This definition of 'sale' has been brought in by way of the Tripura Sales Tax (Third Amendment) Act, 1984 and that was done in conformity and consonance with the definition of 'sale' available in sub-clause (d) of clause (29A) of Article 366 of the Constitution of India. The meaning of ' sale' for the purpose of tax on sale or purchase of goods has been extended by c the Constitution (46th Amendment) Act, 1982. In view of sub-clause (d) of clause (29A) of Article 366 of the Constitution of India, a tax can be levied on sale or purchase of any goods which includes "a tax on the transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration". So, in my considered opinion, the statutory definition of 'sale' as available under clause (ii) of sub-section (2) of section 2 of d the Act is valid and has been done in consonance with the term of sub-clause (d) of clause (29A) of Article 366 of the Constitution of India and as such the State Legislature had the constitutional competence to levy tax on the amount received or receivable by a person for transferring the right to use of his vehicle by other for any purpose (whether or not for a specified period). In other words, the amount derived or derivable for transfer of the right to use of any vehicle, is taxable amount e and the consideration money so received is a sale price for the purpose of the Act. 7. Mr. AK Bhowmik, learned senior counsel for the petitioners submits that there is no charging section regulating the present transactions and as such the petitioners are not liable to pay any sales tax. 8. Mr. 7. Mr. AK Bhowmik, learned senior counsel for the petitioners submits that there is no charging section regulating the present transactions and as such the petitioners are not liable to pay any sales tax. 8. Mr. UB Saha, learned Senior Govt Advocate appearing on behalf of the State-respondents having referred to the second proviso to section 3(1) of the Act, submits that any valuable consideration received or receivable for transfer of the right to use of any vehicle for any purpose (whether or not for specified period) is taxable at the rate of 4% of the consideration amount in view of second proviso to section 3 (1) of the Act. 9. From a combined reading of section 2 (b), 2 (g) and 3 A of the Act, it reveals that for the purpose of the Act, there are three kinds of 'sale'. Under section 2 (b), 'sale' means also sale of goods, manufactured, made or processed in Tripura or brought into Tripura from outside for the purpose of sale and also includes: transaction under section 3 A of the Act where any transfer of property in goods either in the form of goods in original or in some other form involved in the execution of the works contract and also a transaction under section 2 (g) of the Act where any transfer of right to use any goods for any purpose (whether or not for specified period) for any valuable consideration. The first term is undoubt­edly a ' sale' in common parlance, that is sale of goods itself, but the transactions covered by second and third are 'sales' by legal fictions which have been commonly termed as 'deemed sale' and that is only for the purpose of sales tax. 10. Section 3 is the only charging section under the Act. Sub-section (1) of section 3 of the Act postulates that "every dealer in taxable goods shall pay a tax on his turnover at the rate specified in column (3) of the Schedule attached to, this Act." The second proviso to section 3(1) of the Act adds "provided further that the rate of tax on any transfer of the right to use any goods for any purpose (whether or not for a specified period) shall be 4%." 11. So far the charging provision is concerned, section 3 (1) of the Act postulates the levying of tax at the rate specified under the Schedule. Section 3 A of the Act makes the "transfer of property in goods (either in the form of the c goods in original or in some other form) involved in the execution of the works contract" chargeable at the rate specified under the Schedule while the second proviso to section 3 (1) of the Act makes the consideration amount received or receivable for transferring the right to use any goods for any purpose taxable at the rate of 4% of the consideration amount. 12. Mr. Bhowmik, learned senior counsel appearing on behalf of the petitioners though concedes that the transaction of any transfer of the right to use of any goods for any purpose for valuable consideration may be termed as 'deemed sale', but in absence of specified charging section the petitioners cannot be roped with the liability to pay sales tax. According to Mr. Bhowmik, liability to pay sales tax is embodied in the charging section 3 (1) of the Act read with section 8 of the Act and since the charging section does not provide tax to be levied on such 'deemed sale', the second proviso to the aforesaid section 3 (1) of the Act cannot be allowed to survive being a charging section. Mr. Bhowmik further submits that though the aforesaid transactions could be termed as 'deemed sale' yet the petitioners cannot be identified to be 'dealers' in view of section 2 (b) of the Act because none of the petitioners sold any taxable goods nor manufactured, made or processed any taxable goods in Tripura nor brought any taxable goods from outside Tripura for the purpose of sale and as such the transport business carried on by the petitioners by allowing their vehicles to be hired either by ONGC or by GAEL or any other authority or individual on payment cannot be termed as 'sale' for the purpose of identifying them to be 'dealers'. 13. Mr. 13. Mr. Saha, the learned Senior Govt Advocate, on the other hand, referred the second proviso to section 3(1) of the Act and according to him, at the time of initial enactment of the Act in 1976, the "transfer of right to use any goods" was not termed as 'sale' and as such section 3 (1) of the Act did not include each transaction within the periphery of the charging provision, but since in view of 46th amendment of the Constitution of India in 1982, the Act has undergone Amendment in view of the amended meaning of' sale' as available under section 2 (g) (ii) of the Act, any transfer of right to use any goods for any purpose has been brought under its fold and as such the charging section required further amendment and the State legislature vide the Tripura Sales Tax (Fourth Amendment) Act, 1987 inserted the second proviso to section 3 (1) of the Act. 14. From the aforesaid discussion and the legal position analysed, I am of the considered opinion to hold that the sales tax on the sale of goods simplicitor is charged by charging section 3(1) of the Act while consideration received or receivable by a person by transfer of right to use any goods ( here the vehicles) for valuable consideration is made taxable by the second proviso to section 3 (1) of the Act. 15. Mr. Bhowmik, learned senior counsel for the petitioners submits that there is no provision akin to section 3AA of the Act to realise sales tax by way of deduction at source for the amount due to be paid by the ONGC/GADL to the petitioners for using the petitioners' vehicles by them. 16. It is correct that section 3AA of the Act authorises the deduction of tax at source at the time of payment for the transactions covered by section 3 A of the Act and the transactions relating to other purposes are not covered by section 3 AA c of the Act. Section 3 A deals with the payment of tax on the transfer of property in goods involved in the execution of the works contract and section 3 A authorises the collection of sales tax by way of deduction at source from the amount become due to be paid to the person who is liable to pay sales tax under section 3 A of the Act. In the present cases, the petitioners never, entered into agreement with ONGC/ GADL to execute any work contract and no property in goods has ever been d transferred by the petitioners in favour of ONGC/GAJL and as such the provision of section 3AA of the Act for making deduction at source is not applicable in the present cases, the learned senior counsel for the petitioners contends. There is no other provision under the Act itself for recovery of tax by way of deduction at source or by way of advance taxation and as such according to the learned senior counsel for the petitioners, sub-rule (2) of Rule 3 A of the Rules is ultra vires of the Act itself. Sub-rule (2) of Rule 3 A of the Rules is quoted below : "3A. (2) Every person responsible for making payment to any person for discharge of any liability on account of valuable consideration payable for any transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash or in any manner, shall at the time of making such payment, deduct an amount equal to four percentum of such towards part or as the case may be, full satisfaction of the tax payable under the Act, on account of such transfer of right: Provided no such deduction shall be made from the bills (s) or invoice(s) of the transferer - (a) on account of such transfer where the transfer of the right to use was agreed to before .first day of January, 1989; (b) The amounts received as penalty for defaults in payment or as damages for any loss or damage caused to the goods by the person to whom such transfer was made; and (c) The amount representing- the valuable consideration received for such transfer in respect of goods exempt from tax under sub-section (2) and (3) of section 3 of the Act." 17. Mr. Bhowmik, learned senior counsel for the petitioners having referred the following citation, submits that the provision of fiscal statute must be strictly construed having regard to the letters and words used in the particular provision of the statute. Mr. Bhowmik, learned senior counsel for the petitioners having referred the following citation, submits that the provision of fiscal statute must be strictly construed having regard to the letters and words used in the particular provision of the statute. There is no room for entertaining the intendment of the Act nor the Statement of Reason and Objects of the Bill into consideration in course of interpretation of any provision of the fiscal statute : (1) AIR 1940 PC 183 (Bank of Chettinad Ltd vs. Commissioner of Income Tax, Madras); (2) AIR 1957 SC 657 (AV Fernandez vs. The State of Kerela); (3) AIR 1990 SC 781 (M/s Goodyear India Ltd vs. State of Haryana & another); (4) AIR 1998 SC 120 (Commissioner of Wealth Tax, Gujrat-Ill, Ahmedabad vs. Ellis Bridge Gymkhana etc). 18.1 have carefully gone through the afore cited decisions of the Hon'ble Apex Court. It appears that since from 1940 till date the Hon'ble Apex Court unequivocally reiterated that in interpreting any fiscal statute strict construction should be adhered to the words and language used in a particular section of the c statute and in all probabilities the intendment and/or the Statement of Objects and Reasons behind a fiscal statute should be avoided from consideration. It is correct that the mode of interpretation to be applied in construing a beneficial legislation cannot be taken at par in interpreting any fiscal legislation. So far fiscal legislation is concerned, much emphasize is to be attended to the language and words used in the statute rather than the intention behind. 19. On the other hand, Mr. Sana, the learned Senior Govt Advocate having referred the following citations contends that the Rules and Regulations under a statute have become part of the statutory law having the force of law itself and according to Mr. Saha, the Statement of Objects and Reasons of a legislation is to be taken into consideration for practical interpretation of a piece of legislation for its useful purpose, (a) (1997) 9 SCC 377 (Air India Statutory Corporation others vs. United Labour Union & others); (b) (1992) 2 SCC 343 (Peerless General Finance & Investment Co. Ltd & another vs. Reserve Bank of India); (c) AIR 1952 SC 369 (Aswini Kumar Ghose & another vs. Arabinda Bose & another). 20. Ltd & another vs. Reserve Bank of India); (c) AIR 1952 SC 369 (Aswini Kumar Ghose & another vs. Arabinda Bose & another). 20. On perusal of the decisions relied upon by the learned counsel for the adversaries it reveals that so far fiscal statute are concerned, strict construction must be adhered to in interpreting a particular word or language used in the statute while so far beneficial legislation and other non-fiscal legislation are concerned, liberal construction having regard to the intendment of the Act and the Statement of Objects and Reasons behind it, may be followed. 21. Mr. Bhowmik, the learned senior counsel for the petitioners submits that proviso to any section cannot create any substantive provision of charging section in any fiscal legislation and he referred two citations of the Hon'ble Apex Court, one in Dwarka Prasad vs. Dwaraka Das Saraf, reported in AIR 1975 SC 1758 and another in Vishesh Kumar vs. Shanti Prasad, reported in AIR 1980 SC 892 and submits that a proviso to a section cannot be construe to defeat the basic intention expressed in the substantive legislation nor the proviso could expand the meaning of the main section. 22. It is very difficult to accept the submission of Mr. Bhowmik on that score. Some time proviso can create an independent right or liability having over ridden the main section. It depends upon the words and language used in the proviso. Sometime proviso may be decisive having its own independency, some time proviso may be auxiliary to the main provision and everything depends upon the words and language used by the Legislature in the proviso, as I have already opined that the second proviso to section 3(1) of the Act is an independent charging provision so far the 'deemed sale' is concerned by way of transfer of the right to use any goods for any purpose (whether or not for a specified period) for valuable conside­ration and rate of tax is 4% of the valuable consideration received or receivable, 23. Though there is no provision for deduction of tax at source in the Act, but according to the learned Senior Govt Advocate, pursuant to the Rule making power available under section 44 of the Act, the delegated legislation as available under Rule 3 A (2) of the Rules authorised deduction at source. Mr. Though there is no provision for deduction of tax at source in the Act, but according to the learned Senior Govt Advocate, pursuant to the Rule making power available under section 44 of the Act, the delegated legislation as available under Rule 3 A (2) of the Rules authorised deduction at source. Mr. Saha having referred to section 44 (1) and 44 (2) (1) of the Act submits that being delegated c by the Legislature, the State Govt came forward with the Tripura Sales Tax Rules having embodied among others Rule 3 A for realisation of sales tax at source. The relevant clauses of section 44 of the Act is reproduced below : "44. Power to make rules: (1) The State Govt may, make rules for carrying out the purposes of this Act. (2) Without prejudice to the generality of the foregoing power, such rules may, in particular, prescribed (a) (i) for any other matter necessary for giving effect to the purpose of this Act." 24. Mr. Saha submits that though the Act is silent how the sales tax would be realised by deduction at source so far it relates to the transaction of transfer of right to use any goods, but pursuant to the power bestowed by section 44 (2) (i) of the Act the State Govt made the delegated legislation in Rule 3 A of the Rules and as such the said Rule 3 A is a valid one for carrying out the purpose of the Act. Unless the said Rule 3 A is given effect to, the very purpose of the Act to realise the sales tax would be defeated. 25. On the other hand, Mr. Bhowmik, learned senior counsel for the petitioners submits that the Legislature has no right to delegate the essential legislative functions to any outside agency. To identify the taxable goods, to fix the rate of tax to be charged, mode in which the tax is to be levied are the essentials and fundamental functions of a legislation which cannot be delegated to any outside agency and as such according to Mr. Bhowmik, Rule 3 A (2) of the Rules is ultra vires of the Act. Mr. Bhowmik, Rule 3 A (2) of the Rules is ultra vires of the Act. Mr. Bhowmik further submits that so far the works contract is concerned, the Legislature having exercised their law making power inserted section 3AA allowing the sales tax to be recovered at source and as such it should be presumed by implication that Legislature decided not to make any provision for realisation of sales tax at source relating to die 'deemed sale' as contemplated under section 2 (g) (ii) of the Act. Mr. Bhowmik, having referred a decided case in special reference under Article 143 of the Constitution of India, reported in AIR 1951 SC 332 submits that Legislature must decide its primary legislative function itself and not through other agency. 26. In the afore cited decision the Seven Judges' Constitutional Bench unequivocally commands that Legislature itself must discharge its primary legislative functions and so far the auxiliary or subsidiary functions are concerned that would be delegated to the outside agency. The authority to collect tax, mode of assessment of tax, format of challan, statutory notice etc are undoubtedly subsidiary and incidental functions rightly to be delegated, but who is to pay tax, on what transaction tax is to be levied, whether tax is to be paid at the closure of assessment year, whether tax is to be realised in advance or recovered at source, these are fundamentally essential function of the Legislation on which cannot be delegated. The Legislature in its own wisdom incorporated the provision of section 3AA for realisation of tax at source so far the works contract is concerned, but so far the ordinary sale of taxable goods and the transaction of 'deemed sale' by way of transferring the right to use any goods including vehicles are concerned, the Legislature never made any law permitting either realisation of advance tax or recovery of tax at source as such in my considered opinion, the provision of Rule 3 A (2) of the Rules in ultra vires of the Act itself and as such the same is liable to be struck down. However, it is made clear that though the provision of Rule 3 A (2) of the Rules does not survive yet the petitioners are not absorbed from the liability to pay sales tax at the rate of 4% of the consideration money received or receivable by transferring the right to use their vehicles or by allowing their vehicles to be hired by others and the petitioners are also subject to the provision of section S (2) of the Act 27. The sales tax authority is competent under the Act to ask for return to be submitted under section 8 (2) of the Act by the petitioners and also the petitioners may be required to deposit the sales tax at the time of furnishing the return. The failure to furnish the return as contemplated under section 8 (2) of the Act is to be dealt with by the provisions laid down there under. 28. Since the matter has been pending for a considerable time, the authority may put itself in convenience to locate and ascertain the exact tax liability of the petitioners and as such it is ordered that the ONGC and GAIL are the furnish the details of the vehicles hired by them and the amount paid or payable by them to the petitioners within a period of 15 (fifteen) days from today enabling the State authority to proceed in accordance with law for realisation of accumulated sales tax amount payable by the petitioners. 29. Though the provision of Rule 3 A (2) of the Rules is hereby struck down yet in my considered opinion, the petitioners are not absolved from the liability to pay sales tax at he rate prescribed under the second proviso to section 3 (1) of the Act and the are further liable to furnish return as when called for under section 8 (2) of the Act. 30. With these observations and direction, the impugned notification requiring the ONGC and GAIL to deduct 4% from the bills of the petitioners are hereby set aside quashed. 31. The petitions are allowed to the extent indicated above with no order as to costs.