TMI Blog2014 (9) TMI 373X X X X Extracts X X X X X X X X Extracts X X X X ..... what has been provided in the Act. Section 5(2)(c) of the Tripura Value Added Tax Act, 2004 is one of such rule which is entirely unworkable and vague. He has further submitted that in the present writ petition the horizon is much wider for consideration and it is different in nature. For non-disclosure of pendency of the previous writ petition or the interim order passed in connection therewith, it cannot be said there have been suppression of material facts. It cannot be denied that the writ petitioner has suppressed some facts, which were apparently material to the dispute as raised in the present writ petition. Therefore, the interim order dated March 12, 2013, stands modified and the direction that until further order the impugned memorandum dated June 25/30, 2005, the notification dated September 21, 2011, the notification dated November 26, 2011 and the notification dated February 1, 2011, shall remain suspended is hereby vacated. However, that part of the impugned assessment order for the years 2007-08, 2008-09, 2009-10, 2010-11 and 2011-12 whereunder in absence of any books of accounts the value towards the labour service charges and the other like charges have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m, dated June 25/30, 2005, notifications, dated September 21, 2011, November 16, 2011 and August 1, 2012, and also the impugned orders of assessment, the demand notices and the orders of attachment shall remain suspended. The respondents are left at liberty to move this court for modification/vacation/alteration of this interim direction. Dr. Saraf, learned senior counsel assisted by Mr. K. Roy, learned counsel along with Mr. N.C. Pal, learned Government Advocate appearing for the Revenue has submitted that the said interim order has been obtained by exercise of fraud and suppression of the material fact inasmuch as it has completely suppressed that the writ petitioner has filed another writ petition being W.P. (C) No. 440 of 2012 by challenging the memorandum dated June 25/30, 2005, the notification dated September 21, 2011, the notification dated November 16, 2011 and the notification dated August 1, 2012. It has been deliberately suppressed that along with the said writ petition, one application for interim measure by way of restraining the Revenue-respondents from acting in furtherance of the said impugned memoranda/notifications had been filed but on the face of the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n on the same subjectmatter and between the same parties being W.P. (C) No. 440 of 2012 and the interim order dated September 18, 2012 as passed in C.M. Appl. No. 359 of 2012 in W.P. (C) No. 440 of 2012 with unmasked purpose of misleading this court and obtaining the interim order by such suppression and mis-representation of the relevant fact. Had the said interim order dated September 18, 2012 been placed before this court before the order dated March 22, 2013 was passed in W.P. (C) No. 72 of 2013, this court would not have passed the interim order in favour of the petitioner in conflict to its previous order. He has also submitted that after passing the said interim order, dated September 18, 2012, the Revenue-respondents has published the memorandum No. F.I-7(11)-TAX/87/PART-II dated January 8, 2013 whereby it has been provided that the tax would be deducted against the works contract at the source. By the said memorandum dated January 8, 2013 various charges towards labour and services have been sub-categorized on which the deduction would be made. It has also been clarified in the said memorandum dated January 8, 2013 that In cases where the amount of charges towards labour, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner, the balance amount, if any, shall be made available to the petitioners within four weeks from the expiry of the said period of three months. Coupled with the above, it is further directed that the respondents shall not, henceforth, make deduction, at source, at flat rate from the running bills of the petitioner. Dr. Saraf, learned senior counsel has quite candidly submitted that the Revenue-respondents have been complying those directions and they have taken up the exercise of assessment of turnover return of the writ petitioner but the writ petitioner on the lame and unsustainable pretext had been avoiding participation in the assessment proceeding and ultimately the assessment has been finalized for the assessment years 2007-08, 2008-09, 2009-10, 2010-11 and 2011-12 and the demand of ₹ 30,10,090 has been raised and the writ petitioner has been asked to comply that demand. Since the petitioner did not comply the demand in terms of the notice issued along with the assessment order dated September 21, 2011, the Revenuerespondents have launched the recovery proceeding under section 38 of the Tripura Value Added Tax Act, 2004 with caution that if the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ief on an ex parte statement he should make a full and fair disclosure of all the material facts-it says facts, not law. He must not misstate the law if he can help it-the court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts; and the penalty by which the court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the court will set aside any action which it has taken on the faith of the imperfect statement. The apex court further observed that: 36. A prerogative remedy is not a matter of course. While exercising extraordinary power a writ court would certainly bear in mind the conduct of the party who invokes the jurisdiction of the court. If the applicant makes a false statement or suppresses material fact or attempts to mislead the court, the court may dismiss the action on that ground alone and may refuse to enter into the merits of the case by stating. 'We will not listen to your application because of what you have done'. The rule has been evolved in the larger public interest to deter unscrupulous litigants from abusing the process ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCC 336 (SCC pages 340 and 341, para 9): '9. . . .There is no doubt left in our minds that the petitioner has not only suppressed material facts in the petition but has also tried to abuse judicial process. . .' K.D. Sharma [2008] 12 SCC 481, has approved Vijay Syal v. State of Punjab as reported in [2003] 9 SCC 401 where it has been enunciated that: 24. In order to sustain and maintain the sanctity and solemnity of the proceedings in law courts it is necessary that parties should not make false or knowingly, inaccurate statements or misrepresentation and/or should not conceal material facts with a design to gain some advantage or benefit at the hands of the court, when a court is considered as a place where truth and justice are the solemn pursuits. If any party attempts to pollute such a place by adopting recourse to make misrepresentation and is concealing material facts it does so at its risk and cost. Such party must be ready to take consequences that follow on account of its own making. At times lenient or liberal or generous treatment by courts in dealing with such matters are either mistaken or lightly taken instead of learning a proper lesson. Hence the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice of such order, appeal to the prescribed authority against such assessment or penalty: Provided that (i) no appeal shall be entertained by the said authority unless, he is satisfied that the amount of tax assessed or the penalty levied has been paid; It has been further provided that: (ii) the authority before whom an appeal has been filed may, for reasons to be recorded in writing, direct the appellant to pay any lesser amount which shall not be less than fifty per cent of the tax assessed or fifty per cent of the penalty levied and, on payment of the amount so directed, entertain the appeal. Dr. Saraf, learned senior counsel, has added further that the appeal can also be filed after the expiration of 30 days if such authority is satisfied that for reasons beyond the control of the appellant or for any other sufficient cause the appeal could not be filed within time. The appellant without taking recourse to that statutory remedy has approached this court to avoid payment of the due tax as levied by the impugned assessment order and suppressed those material fact from this court for deriving benefit to which the writ petitioner is not otherwise entitled to. Mr. D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n applicant on the ground of her non-residence, the fact that she had purchased and was maintaining a house in the country was held to be a material fact the suppression of which disentitled her from the relief claimed. Again when in earlier proceedings before this court, the appellant had undertaken that it would not carry on the manufacture of liquor at its distillery and the proceedings before this court were concluded on that basis, a subsequent writ petition for renewal of the licence to manufacture liquor at the same distillery before the High Court was held to have been initiated for oblique and ulterior purposes and the interim order passed by the High Court in such subsequent application was set aside by the apex court (State of Haryana v. Karnal Distillery Co. Ltd. AIR 1977 SC 781). Similarly, a challenge to an order fixing the price was rejected because the petitioners had suppressed the fact that an agreement had been entered into between the petitioners and the Government relating to the fixation of price and that the impugned order had been replaced by another order. Welcome Hotel v. State of A.P. AIR 1983 SC 105. All these illustrations were provided in S.J.S. Bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... particular items are taxable in a works contract and what particular deductions are to be made from the works contractor. In absence of any prescription or any other charges in the statute the Revenue cannot by way of exercise of the powers as provided under section 87 of the Tripura Value Added Tax Act cannot make any law in the form of the rule which stands contrary to what has been provided in the Act. Section 5(2)(c) of the Tripura Value Added Tax Act, 2004 is one of such rule which is entirely unworkable and vague. He has further submitted that in the present writ petition the horizon is much wider for consideration and it is different in nature. For non-disclosure of pendency of the previous writ petition or the interim order passed in connection therewith, it cannot be said there have been suppression of material facts. In this regard, he also pressed for appreciation, a decision of the apex court in Mayar (H.K.) Ltd. v. Owners Parties, Vessel M.V. Fortune Express reported in [2006] 3 SCC 100 where the apex court held that: . . . The expression 'material facts' has not been defined anywhere, but from the wording of Order VI rule 2 the material facts would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... There is a plethora of case law on this point but to cut down this circle of forensic whirlpool we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field. Mr. Deb, learned counsel for the writ petitioner, has further submitted that it would be evident from the impugned assessment order that rule 7A of the Tripura Value Added Tax Rules, 2005 as incorporated by the impugned notification dated August 1, 2012, has been given retroactive operation by levying the additional tax for labour and services fully in terms of the amended rules whereas sub-rule (2) of rule 1 of the Tripura Value Added Tax (Second Amendment) Rules, 2012, specifically provides that those rules shall come into force from the date of their publication in the official gazette and such publication has been caused only on August 1, 2012. As such, anterior to that date, rule 7A as incorporated by the Tripura Value Added Tax (Second Amendment) Rules, 2012, cannot have any sort of application on the assessment under reference. He has also referred to the assessment order to show that in absence of any books of accounts, the value towards labour charges, service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dified and the direction that until further order the impugned memorandum dated June 25/30, 2005, the notification dated September 21, 2011, the notification dated November 26, 2011 and the notification dated February 1, 2011, shall remain suspended is hereby vacated. However, that part of the impugned assessment order for the years 2007-08, 2008-09, 2009-10, 2010-11 and 2011-12 whereunder in absence of any books of accounts the value towards the labour service charges and the other like charges have been assessed and deducted from the gross bill as per the amended rule 7A to determine the taxable turnover shall remain suspended till disposal of the writ petition. However, the Revenue shall be at liberty to redraw the demand notice in view of this order and also to proceed with the attachment proceeding in terms of the redrawn assessment order as indicated. The jurisprudential objection as raised by Dr. Saraf, learned senior counsel, as regards the maintainability of the writ petition shall remain open inasmuch as this court is of the opinion that the impact of suppression is required to be appreciated in terms of the reliefs as sought for in the present writ petition. In absenc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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