TMI Blog2011 (4) TMI 1402X X X X Extracts X X X X X X X X Extracts X X X X ..... o the undue enrichment on the part of the petitioner in refunding the amount claimed - petition allowed - decided in favor of petitioner. - Case No. RN-266 of 2009 - - - Dated:- 8-4-2011 - Saikh Abdul Motaleb Judicial Member and Dipak Chakraborti Technical S. Dasgupta for the applicants B. Majumdar, State Representative, for the respondents ORDER SAIKH ABDUL MOTALEB (Judicial Member) .-In this application in the nature of writ of mandamus, filed under section 8 of the West Bengal Taxation Tribunal Act, 1987, the petitioner-company has challenged the order dated January 30, 2009 passed by the Deputy Commissioner of Sales Tax, Ballygunge Charge (respondent No. 1), refusing to refund forthwith the amount of ₹ 27,500 deducted as tax at source on the sale price of ₹ 15,14,423 of the goods supplied to the Bally Municipality and deposited in terms of form 18, SI. No. 9/196 dated March 7, 2008 and for other consequential reliefs like payment of cost and interest and for directing the officer concerned to revoke/rescind/cancel and quash the order. The facts and circumstances leading to filing the writ are-the petitioner-company of Chennai carries on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not entitled to any refund under section 40(6) of the VAT Act read with rule 81(2) of the VAT Rules assigning some reasons and thereby treating the petitioner-company as a works contractor and hence this writ application. Now it is the contention in the application and submission of Mr. S. Dasgupta, learned advocate for the petitioner, that according to the provisions of rule 81(2) of the VAT Rules, respondent No. 1 was duty- bound to make the refund within a period of six months as the applicant was not liable to pay tax under section 14 of the VAT Act but that was not complied with. It is further contended and submitted that though there was a warranty clause in the quotation in question for supply of the system declaring that there could be free servicing and replacement of materials during the warranty period for one year the petitioner-company was not liable to pay tax on such replaced articles/goods under section 14 of the VAT Act because such services and/or replacement of goods were not required to be done under any terms of the works contract. Admitting that the petitioner-company subsequently submitted an application for amending its registration certificate for inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, second part-supply of the system and the third part- after sale service and hence those indicate that the sale was done in execution of works contract as defined under section 2(57) of the VAT Act and it was not a mere sale of a machine. It is further contended there and submitted by Mr. B. Majumdar, learned State Representative, that mere submission of the petitioner-company that the sale, made with the Bally Municipality, was a mere sale of goods under the Sale of Goods Act, 1930 is not based on any solid ground and is inappropriate to the merit of the case. It is also contended and submitted for the respondents that supply of the system in question was happened after receiving the work order placed by the Chairman, Bally Municipality, with some expatiate condition laid down by the municipality without raising any objection by the petitioner-company and accordingly after sale service was rendered by the petitioner to the municipality and, therefore, the sale was clearly a part and parcel of the whole works contracted and hence the petitioner-company was liable to pay tax under section 18 of the VAT Act, 2003 and in view of that the impugned order dated January 30, 2009 is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0(2) of the Act was also deposited in the Government exchequer through bank. Now the question comes for consideration is whether the transaction as aforesaid can be treated as one under the works contract as per the provision of section 2, sub-section (57) of the Act or not. It will be pertinent here to note that as per the case of the petitioner- company itself the Bally Municipality so deducted the tax on the sale price at source in form 18 and under section 47 of the VAT Act and there- fore both the form and the provision relate to the tax under works contract. It is also its case on record that the application for refund of the tax deducted was also filed under section 40(6) of the Act and claimed the refund by six months as per rule 81(2) of the VAT Rules and both are also relate to the refund of tax paid for works contract. It appears therefore that the Bally Municipality has always treated the sale of the system by the petitioner-company and purchase by it in execution of a works contract. Therefore, prima facie the sale and purchase was not a simple one to treat under the Sale of Goods Act, 1930 as is claimed by the petitioner and for that respondent No. 1 was sitting id ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o condition either in express or implied for any after sale service to construe that the act of supply was a job-work under a works contract. On cumulative consideration of the aforesaid rival contentions of the parties and the documents on record and the provision of works contract it appears to us that there was no bilateral agreements in between the parties and/or containing some specified terms and conditions on after sale service as is contended by the respondents. From the documents as afore- said there is nothing to show that save and except supply of the ultra sound imaging system the petitioner-company was agreed to install the system in any building and/or with undertaking to do repairing works of the machinery in future though there was a warranty for one year on the goods supplied. It has already been stated before that the value of the system was ₹ 15,75,000 out of that ₹ 2,00,000 was the buy back value of Siemens Adhara with one mechanical in working condition. It also appears from the annexed quotation of the petitioner-company that the net amount payable to it was ₹ 13,75,000 and the petitioner-company charged ₹ 60,577 as VAT and ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment. It is however, admitted that the petitioner-company is yet to receive the information of such assessment from the authority as per section 47(2) of the said Act read with rule 60 of the VAT Rules, 2005. The notable fact here is that the respondents have not disputed the above claim of deemed assessment. It has already been stated before that there is no dispute that Bally Municipality has duly deposited the deducted tax of ₹ 27,500 collected from the petitioner-company at source. Taking all these into account we find no reason as to why the petitioner- company will not get refund of the amount of ₹ 27,500 deducted by the Bally Municipality as tax at source and deposited in the Government exchequer and particularly when there is no case on record that the dealer is found liable to pay any tax after the deemed assessment under section 47 of the Act and, therefore, there cannot be also any question as to the undue enrichment on the part of the petitioner in refunding the amount claimed. In view of the above the application of the petitioner deserves to be allowed and accordingly it is allowed but in the circumstances without any order as to costs. The res ..... 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