TMI Blog2007 (3) TMI 688X X X X Extracts X X X X X X X X Extracts X X X X ..... 2003 (hereafter referred to as, the Act ) on the total value of the works. The petitioner No. 2 was registered under the Act for which a certificate to the said effect under the Assam Value Added Tax Rules, 2005 (hereafter referred to as, the Rules ) was duly issued by the appropriate authority. According to the petitioners, they paid lumpsum amount of tax under the Act. They have asserted that the maintenance works executed by them did not constitute a sale under the Act and did not involve a transfer of property under the Act and, therefore, no tax was payable thereunder. They maintained that they were entitled to tax relief envisaged under section 47(1)(b)(i) of the aforementioned statute and, therefore, they had on June 5, 2006 submitted an application to the concerned respondents for issuing an exemption certificate thereunder. Their grievance is that in spite thereof no such exemption has been granted and the respondents have been deducting sales tax at source from the gross value of their bills. (1) Reported in[2007] 7 VST 76. The office having submitted a report of service on all the respondents based on a notice submitted on behalf of the petitioners to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Joint Commissioner of Taxes, Assam, has been filed relying on the submissions made in the affidavit-in-opposition on behalf of the Finance Department in Barman Enterprise v. State 1.. Reported as Arunodoi Construction Co.(P) Ltd. v. State of Assam [2002] 127 STC 651 (Gauhati). of Assam [W.P. (C) No. 3 of 2007]. Therein, resisting the challenge to the deduction of tax at source by the railway authority from the gross value of the bills of the petitioner, the Department of Finance questioned the maintainability of the writ petition for non-exhaustion of the alternative remedy under section 47(1)(b)(i) of the Act read with rule 28(2) of the Rules. The respondents therein affirmed that unless such a certificate was obtained, the authority concerned had no option but to deduct tax at source on the entire amount of the bill. It was contended that the railway authority was not competent to determine the taxable turnover of the petitioner and that for availing the benefit of paying lower amount of tax or tax exemption in respect of the works contract in question, the petitioner was to apply for a certificate of deduction of tax at source or no deduction before the prescribed auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The taxing authorities for carrying out the purpose of the Act have been enumerated in section 3. Sub-section (9) thereof authorises the Commissioner of Taxes to delegate any of his powers under this Act and the Rules to any officer by notification in the official Gazette. Under section 20, the Government is empowered by notification published in the official Gazette subject to such conditions and restrictions as may be specified therein, to permit any retail dealer whose gross turnover calculated from the commencement of any year first exceeds within such year the taxable quantum but does not exceed such amount as may be mentioned in such notification to pay at his option, in lieu of the tax payable under the Act an amount by way of composition calculated at the rate that may be fixed by the Government in the notification, the outer limit whereof would be five percentum of the turnover. Rule 13(13) requires that every dealer, who opts for composition scheme under section 20 or a casual dealer should apply for registration in form 4 and would be granted a certificate in form 5 and assigned a General Registration Number (GRN) which would be mentioned in the certificate of regi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribed authority a certificate quantifying lesser amount of tax or granting exemption therefrom is permissible, he, in his discretion, may choose to incur the liability of paying a computed amount following composition of tax at a prescribed rate. No element of compulsion to avail the benefit of section 20 or 47(1)(b)(i) is discernible in the said provisions. On the other hand, on electing to submit to the incident of composition of tax as envisaged in section 20, the dealer/contractor undertakes to discharge the consequential liability voluntarily. In that view of the matter, in my opinion therefore, resort to section 47(1)(b)(i) of the Act by the said dealer/contractor for deduction of tax or discharge from such liability is not comprehensible. These two provisions are mutually exclusive. In T. H. Venkate Gowda [2007] 5 VST 553 (Karn), the petitioner, a registered dealer under the relevant sales tax law, had executed certain civil works of the Government of Karnataka during the assessment year 1996-97 for which he received Rs. 31,85,983 as consideration. He opted for composition assessment under section 17(6) of the Karnataka Sales Tax Act and filed his return. The asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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