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TMI Blog2011 (4) TMI 1402X X X X Extracts X X X X X X X X Extracts X X X X ..... . The facts and circumstances leading to filing the writ are-the petitioner-company of Chennai carries on business of sale of medical equipments from its branch office at Krishna Villa, 1st Floor, 100C, Park Street, Kolkata 700 017 and is a registered dealer under the West Bengal Value Added Tax (VAT) Act, 2003. On or about August 17, 2007, the petitioner company, received one purchase order from the Chairman, Bally Municipality for supply of one TOSHIBA Digital Whole Body Colour Ultrasound Imaging System for a total price of Rs. 15,75,000 less buyback value of Rs. 2,00,000 and in compliance thereof one tax invoice bearing No. KOL/ SA/0021/2007-08 dated September 29, 2007, was raised charging Rs. 15,14,423 as the sale price and Rs. 60,577 as sales tax payable. At the time of making payment of Rs. 13,75,000 the Bally Municipality deducted Rs. 27,500 being the four per cent tax at source and issued the certificate in form 18 under SI. No. 9/196 dated March 9, 2008 under rule 47 of the VAT Rules, 2005 and stating therein that the deducted amount had deposited with the State Bank of India, Howrah branch, on January 10, 2008 under challan No. 8566/2. The petitioner-company thereafter f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted an application for amending its registration certificate for inclusion of works contract in declaring its nature of business but as per definition clause of "works contract" under section 2(57) of the VAT Act the supply of the ultrasound imaging system machine to the Bally Municipality cannot be treated as made under works contract as there was no case of construction, fitting out, improvement or repair of any building or other immovable property and/or installation or repair of any machinery affixed to a building or other immovable property and/or for overhaul or repair of any motor vehicle, sea going vessel, other vessels propelled by internal combustion or by any other mechanical means, any component or accessory part of the goods mentioned in items I-IV, or the fitting of, assembling, lettering or ornamenting, finishing, furnishing, improving, processing, photocopying, developing, treating, attaching or printing of any goods was there. It is submitted by Mr. Das- gupta that the sale of the system by the petitioner-company to Bally Municipality was not in execution of any works contract being the work not included in any of the aforesaid categories of works contract as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and in view of that the impugned order dated January 30, 2009 is neither arbitrary nor illegal or a misconceived one and, therefore, not liable to be set aside as is prayed. It is submitted by Mr. Majumdar that in compliance with the order passed by this Tribunal in Case No. 630 of 2008, the assessing authority communicated the application to the Chairman to ascertain the nature of the transaction and thereafter considered the application for refund and it was found not merely a simple sale under the Sale of Goods Act, 1930 but a sale under works contract and has finally disposed of the application as per provision of law and hence it deserves to be confirmed by dismissing the application of the petitioner-company with cost. The respondents have annexed some documents in support of their contention taken in the affidavit-in-opposition. We have perused the documents annexed by the petitioner-company with the application and by the respondents with the affidavit-in-opposition. We have considered the rival submissions made for both the sides with reference to the contents of the documents filed. There is no dispute and/or it is the admitted fact and also established by document on r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or that respondent No. 1 was sitting idle for refund till assessment of the relevant period. But when the matter came before the Tribunal for the first time in 2008 and respondent No. 1 was directed to dispose of the pending application as per the provision of sub-rule (2) of rule 81 of the VAT Rules, the matter was disposed of by the order impugned and as rule 81 is also relating to refund or adjustment of tax deducted at source in respect of works contract and of a dealer having no liability to pay tax under the Act and the assessment for the relevant period was also not completed, respondent No. 1 opined in the order after detail discussion over the matter that the case of refund can only be considered during the assessment proceedings. It is stated before that "works contract" has been defined under sub- section (57) of section 2 of the VAT Act and on consideration of the relevant portion thereof it appears to us that to constitute any work as a "works contract" there must be a bilateral agreement in between the principal and the contractor. It is seen before that here in this case there is no such bilateral contract in between the principal, Bally Municipality and the alleged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... VAT and there is no dispute about the quantum and the payment thereof in the Government exchequer through bank. It appears from the impugned order dated January 30, 2009 passed against the claim of the petitioner for refund of Rs. 27,500 deducted by the Bally Municipality as tax at source that the DCST, Bally Charge, opined that the petitioner is not entitled to get refund as is claimed under section 40(6) of the VAT Act and rule 81(2) of the VAT Rules as the said amount will be treated as payment made under section 40(1) of the VAT Act and for that the claim for refund can only be considered in course of assessment proceedings under section 46(1) of the said Act. In view of the above findings in the order, in course of hearing, the petitioner was asked by this Tribunal to file supplementary affidavit as to whether the return for the relevant period has already been filed, and if so filed, whether the assessment thereof has since been completed or not. It will be worth noted here that in compliance of such query by this Tribunal the petitioner has submitted a supplementary affidavit annexing the copy of returns submitted for the period from July 1, 2007 to September 30, 2007 with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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