Allahabad High Court
Narendra Dev University Of ... vs Commissioner Commercial Tax ... on 5 October, 2023
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:65004
Court No. - 17
Case :- SALES/TRADE TAX REVISION No. - 66 of 2019
Revisionist :- Narendra Dev University Of Agriculture And Technology Faizabad
Opposite Party :- Commissioner Commercial Tax U.P.Lucknow
Counsel for Revisionist :- Ashok Kumar Rai,Madhav Srivastava,Madhusudan Srivastava,Satyanshu Ojha
Counsel for Opposite Party :- C.S.C.
Alongwith
(1) Case :- SALES/TRADE TAX REVISION No. - 64 of 2019
Revisionist :- Narendra Dev University Of Agriculture And Technology Faizabad
Opposite Party :- Commissioner Commercial Tax U.P.Lucknow
Counsel for Revisionist :- Ashok Kumar Rai,Madhav Srivastava,Madhusudan Srivastava,Satyanshu Ojha
Counsel for Opposite Party :- C.S.C.
And
(2) Case :- SALES/TRADE TAX REVISION No. - 65 of 2019
Revisionist :- Narendra Dev University Of Agriculture And Technology Faizabad
Opposite Party :- Commissioner Commercial Tax U.P.Lucknow
Counsel for Revisionist :- Ashok Kumar Rai,Madhav Srivastava,Madhusudan Srivastava,Satyanshu Ojha
Counsel for Opposite Party :- C.S.C.
Hon'ble Alok Mathur,J.
1. Heard Sri Sanjeev Shankhdhar, learned counsel for the revisionists as well as Sri Sanjay Sarin, learned counsel for the respondents.
2. With the consent of learned counsel for the parties all the three revisions are being heard and decided by this common judgment. The supplementary affidavit filed on behalf of revisionist is taken on record.
3. It is submitted by learned counsel for the revisionist that on account of non deposit of TDS on the amount alleged to have been received by the revisionist for construction of Stadium at Narendra Dev University of Agriculture & Technology, Faizabad, penalty has been imposed upon the revisionist by the respondents.
4. Against the order imposing penalty the revisionist approached the Commercial Tax Tribunal (hereinafter referred to as "the Tribunal") which confirmed the penalty order. The revisionist being aggrieved by both the aforesaid orders, on previous occasion had filed Trade Tax Revision No. 17 of 2018 before this Court, where it was submitted that said Stadium was constructed by the U.P. Awas Evam Vikas Nigam Ltd., Lucknow and the money was directly transferred by the State Government to the Awas Evam Vikas Nigam Ltd. and no funds were ever transferred by the revisionist to the U.P. Awas Evam Vikas Nigam Ltd. necessitating tax deduction at source. It is for the said reason that TDS was not deducted by the revisionist on the payments made to the U.P. Awas Evam Vikas Nigam Ltd. for construction of Stadium.
5. Noticing the said argument of revisionist, this Court by means of judgment dated 13.07.2017, had disposed of the revision remanding the matter to the Commercial Tax Tribunal for looking into the facts as asserted by the revisionist before this Court.
6. In the remand proceedings, the Tribunal directed the revisionist to produce material on the basis of which it can be demonstrated that funds of the State Government were transferred directly to the U.P. Avas Evam Vikas Nigam Ltd. and if the facts were so then the revisionist cannot be saddled with the liability of deducting TDS. Despite aforesaid direction issued by the Tribunal the revisionist did not file any documents in support of its submission and consequently the Tribunal was constrained to observe that the revisionist had not produced any document from which it can be shown that they were not liable to deduct TDS, accordingly the revision filed by the revisionist was rejected.
7. The Accountant of revisionist had appeared before the Tribunal and admitted that TDS was not deducted because they were not aware of the relevant legal provisions. The Tribunal has observed that the purpose of disbursal of funds to the U.P. Awas Evam Vikas Nigam Ltd. was to undertake work of construction and has observed that payment was to be made to an agency at each stage of completion of work and not in one lump-sump. Satisfaction is recorded at each stage and then funds are released to the agency. It is stated that the revisionist infact had paid U.P. Awas Evam Vikas Nigam Ltd. at each stage of construction, after they were satisfied that a particular stage was satisfactorily completed.
8. The Accountant of revisionist who appeared before the Tribunal had stated that bills were prepared by the revisionist themselves and submitted to the Treasury and amount was also transferred by the revisionist. It is stated that funds were not transferred merely because of ignorance of legal provisions and at presently regular TDS is deducted from the amount transferred to the Agency(s) who are undertaking construction work.
9. Supplementary affidavit has been filed by the revisionist stating that U.P. Awas Evam Vikas Nigam Ltd. has also deducted TDS of the Contractor under Section 34(8) of the U.P. VAT Act, 2008 and has accordingly submitted that for the same transaction VAT can be deducted twice. This argument is also not held to have any worth as U.P. Awas Evam Vikas Ltd. was also deducting TDS on the amount they were paying to the Contractor and not on the amount which they had received from the revisionist.
10. From the discussion made above, this Court is of the considered view that the Tribunal has rightly imposed penalty upon the revisionist for not deducting TDS on the amounts which were paid to the U.P. Awas Evam Vikas Ltd. as they were given task of constructing Stadium. The Accountant of the revisionist in his statement before the Tribunal has admitted that payments were infact made directly to the Agency on which TDS was to be deducted and deposited with the State authorities. Once it is admitted that payment was made by the revisionist directly to U.P. Awas Evam Vikas Nigam Ltd. then they were mandated to deduct the amount of TDS on such payments. Non deduction of TDS would be deemed to be intentional for which the penalty has rightly been imposed.
11. In the light of above no interference is required by this Court in the order dated 14.03.2019, passed by the Tribunal.
12. The revisions being devoid of merits are rejected.
Order Date :- 5.10.2023
A. Verma
(Alok Mathur, J.)
