South Kumrakhali vs The State Of Tripura
2021 Latest Caselaw 383 Tri

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                      HIGH COURT OF TRIPURA
                            AGARTALA

                            WP(C) No.364/2016

Prayas Automation Pvt. Ltd. (an ISO 9001: 2000 Certified Company), 948,
South Kumrakhali, Sonarpur Station Road, P.O. Narendrapur, Kolkata-
700103, having its principal place of business situated at K. DAS MARKET,
Sakuntala Road, Agartala, West Tripura, 799001, A Registered Dealer under
section 19 (3) of the Tripura Value Added Tax Act, 2004 as well as under
section 7(1)/7(2) of the Central Sales Tax Act, 1956, represented by its
Director Shri Ashoke Kumar Das.
                                                              ----Petitioner(s)
                                       Versus

1. The State of Tripura, Represented by the Principal Secretary, Revenue
Department, Government of Tripura, New Capital Complex, Kunjaban,
Agartala-799006.
2. The Principal Secretary, Finance Department, Government of Tripura,
New Capital Complex, Kunjaban, Agartala-799006.
3. The Principal Secretary, Power Department, Government of Tripura, New
Capital Complex, Kunjaban, Agartala-799006.
4. The Managing Director, Tripura State Electricity Corporation (Ltd.),
Bidyut Bhavan, North Banamalipur, Agartala, Tripura, Pin-799001.
                                                           -----Respondent(s)

For Petitioner(s)                 : Mr. T.K. Deb, Advocate.
For Respondent(s)                 : Mr. A. Nandi, Advocate,
                                    Mr. Biplabendu Roy, Advocate.

       HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
        HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY

      Date of hearing and judgment : 22nd March, 2021.

      Whether fit for reporting         : NO.





                       JUDGMENT & ORDER (ORAL)

(Akil Kureshi, C.J.)

Petitioner has prayed for a direction to the respondents No.3

and 4 to issue "C" Form for the years 2007-08 to 2010-11 so that the

petitioner can avail of the concessional rate of duty on the goods supplied

from outside State.

2. Brief facts are as under:

Respondents No.1 to 3 are State authorities. Respondent No.3

in particular is a Principal Secretary of Power Department of the

Government of Tripura. Respondent No.4 is a Managing Director of Tripura

State Electricity Corporation Limited (hereinafter to be referred to as

TSECL). TSECL had floated a tender for installation and erection of

transmission lines. The petitioner which is a Kolkata based company, had

participated in this tender process. The tender of the petitioner was accepted

and for three different projects work orders were issued in December, 2008

and January & July, 2009. Clause 13 which is common in all agreements

pertains to taxes and duties. As per Clause 13.1 the petitioner would pay all

the customs duties, excise duties, sales tax etc. However, as per Clause 13.2

TSECL would provide concessional sales tax declaration in prescribed

forms which is popularly come to be known as "C" Form. This Clause reads

as under:

"13.2. Concessional Sales Tax declaration forms, as admissible, shall be issued to the Contractor, on request, for all items (as indentified in the price schedule of the Bid) to be supplied directly by the Contractor as well as for the items to be supplied by the Sub-suppliers as sale-in-transit."

3. The case of the petitioner is that in the course of execution of

the work awarded to the petitioner by respondent No.4, the petitioner had

supplied materials directly to the respondent No.4. Such materials were

provided from outside the State and, therefore, would invite concessional

rate of duty. To enable the petitioner to claim such concessional rate of duty,

the petitioner would require "C" Form that the respondent No.4 would

obtain from the respondents No.1 and 2 authorities and provide to the

petitioner. According to the petitioner a total sum of Rs.40,90,581/- is

blocked for the said period between 2007-08 to 2010-11 and the petitioner is

unable to claim return as "C" Form has not been issued by the respondent

No.4.

4. The respondent No.4 has appeared and filed a reply in which

the stand taken is that the petitioner is a registered dealer under the

provisions of the Tripura Value Added Tax Act, 2004 and Central Sales Tax

Act, 1956 in the State of Tripura and it is a supplier of the materials to the

respondent No.4. The petitioner, therefore, cannot claim "C" Form in

relation to such transactions. The petitioner can claim "C" Form only from

the authority under whose jurisdiction the petitioner is registered. In fact, the

respondent No.4 in the affidavit-in-reply has disputed the petitioner‟s claim

for payment of duty at concessional rate.

5. The respondents No.1 and 2, i.e. the taxing authorities of the

State of Tripura have, however, taken a different stand. The stand taken by

the said authorities as emerging from an affidavit-in-reply dated 05.11.2016

is as under:

"9. That, in reply to the averments and/or contentions made in paragraph 5 to 14 of the Writ Petition I state that, the Respondents No.4, TSECL has applied for issuance of 10 (ten) Nos. C-Form on 25.06.2012, out of which 8(eight) Nos. C-Forms were issued to the dealer on 26.06.2012 keeping aside the the remaining 2(two) Nos. C-Forms. But, the rest 2(two) Nos. of C Form as per requirement of dealer which are relating to the billing of Prayas Automation Pvt. Ltd. 948, South Kumrakhali, Sonarpur Station Road, P.O. Narendrapur, Kolkata-700103 bearing invoice nos. TI 0802038 dated 29.02.2008 and TI 0711028 dated 01.11.2007 having value Rs.33,01,750.00 and Rs.43,53,542.00 respectively were not issued to the dealer due to huge value difference coming out from the "utilization of C

Form to the extent on permits obtained". The dealer was asked to explain in writing with supporting documents/papers why the difference value was occurred. But still the dealer fails to produce any explanation for adjudication of the said issue which appears to be the practice on the part of the dealer. Otherwise no application was received from the TSECL for issuance of C Form relating to the billing of Prayas Automation Pvt. Ltd. 948, South Kumrakhali, Sonarpur Station Road, P.O. Narendrapur, Kolkata-700103, in respect of Year 2009-10 & 2010-11 as claimed by the Petitioner. I also state that in respect of issuance of C-Form of the petitioner respondent No.4 is suppose to apply "Requisition Statement" of required C Form along with copies of permits, invoice etc. to the Superintendent of Taxes Charge-I, Agartala.

A copy of letter dated 25.06.2012 and a Statement of „C‟ Form Requisition of TSECL Dated. 26.06.2012 are annexed here with and marked as Annexure-R/1 & R/2 respectively."

6. Appearing for the petitioner, learned counsel Mr. T.K. Deb

pointed out that as per the taxing authorities the reason for not granting „C‟

Form was the mismatch in the valuation. The respondent No.4 on the other

hand has now taken a different stand namely that no such "C" Forms can be

issued at all. This according to the counsel is a wholly untenable argument.

7. Learned counsel Mr. A. Nandi appeared for respondents No.1

to 3 and submitted that there is no prayer made against the said authorities.

In any case, he abides by the affidavit-in-reply filed on behalf of the said

respondents. We may recall respondent No.4 in the affidavit-in-reply has

cited a reason that the petitioner being a registered dealer in Tripura, cannot

claim "C" Form from the respondent No.4; which itself we find a somewhat

of a strange argument. However, learned counsel for the petitioner pointed

out that the petitioner had obtained registration in State of Tripura only on

01.10.2011 which was subsequent to the period in question. When

confronted with this fact, counsel for the respondent argued that the

petitioner ought to have got itself registered earlier and in any case, looking

to the nature of the transaction, the petitioner was not eligible to claim

concessional rate of duty.

8. The situation that emerges from the record is that the petitioner

at the relevant time was a registered dealer in West Bengal. Since the

petitioner was awarded a contract for execution of certain work for

respondent No.4 in Tripura, the petitioner and respondent No.4 appeared to

have entered into an agreement which is manifested in Clause 13.2 that on

the goods supplied by the petitioner directly to respondent No.4, the

respondent No.4 shall issue certificate of concessional rate of duty.

According to the petitioner, the goods supplied were in the course of

interstate trade. The objections of the respondent No.4 for issuing "C" Form

are completely invalid. As noted in the affidavit-in-reply, the main ground

taken was that the petitioner was a registered dealer in the State of Tripura,

which itself being somewhat of a strange ground, in any case, in fact the

petitioner was not a registered dealer in the State of Tripura at the relevant

time. The expansion of the opposition of the respondent No.4 by its

advocate through oral arguments, is also wholly unsustainable in law. The

respondent No.4 does not hold the authority to decide the taxability of the

sale in question. Whether the sale should invite concessional rate of duty or

not is to be judged by the taxing authorities. It was perhaps because of this

reason that the respondent No.4 itself had also approached the VAT

department for issuance of "C" Forms. From the reply filed by the State

authorities, it emerges that such "C" Forms were not issued on account of

anomaly in the valuations. As a State authority respondent No.4 ought to

have conveyed this reason to the petitioner who could have either pointed

out that there is no anomaly or reconcile the figures if it was possible. In the

meantime, for want of "C" Forms the petitioner went on suffering duty at

the higher rates. The Assessing Officer in West Bengal who had jurisdiction

over the petitioner could not postpone the assessments for the fear of the

same getting time barred.

9. Be that as it may, in peculiar facts of the case, we propose to

issue directions to the respondents No.2 and 4 to point out the difference in

the figures which has prevented the respondent No.2 to issue a "C" Form to

respondent No.4 to be given to the petitioner. Upon such communication the

petitioner would have opportunity to clarify or reconcile the figures.

Thereupon, the respondent No.2 shall issue "C" Form to respondent No.4 as

may be justified. However, before doing this, one aspect needs to be

clarified. We have not commented on the claim of the petitioner for

concessional rate of duty on the sales in question. We have devised this

methodology in view of the fact that not the respondent No.2 but the

respondent No.4 who is not a taxing authority is raising the question of

appropriate rate of tax which is not permissible in law.

10. In the result, petition is disposed of with following directions:

(i) The respondent No.2 shall communicate the mismatch in

figures which has prevented the said respondent from issuing "C" Form so

far to the petitioner as well as respondent No.4 simultaneously within a

period of two weeks from today;

(ii) Upon receipt of such communication, the petitioner

would have four weeks time thereafter to file a response to explain the

discrepancy or to reconcile the figures;

(iii) The respondent No.2 thereupon shall issue "C" Forms in

relation to the transactions in question to the extent legally justified. This

exercise shall be completed within four months of the date of receipt of the

clarification from the petitioner;

(iv) We have not made any observations with respect to the

rate of tax that the transaction would attract. It would be the assessing

authority of the petitioner to go into that question if the same ever arises or if

permissible in law, for the respondent No.2 to take into consideration;

(v) We have also not expressed any opinion on the manner in

which the petitioner can take benefit of concessional rate of duty even if "C"

Forms were to be eventually issued and leave it to the petitioner to follow

the remedies, if any, available in law.

11. Pending application(s), if any, stands disposed of.

  (S.G. CHATTOPADHYAY), J                          (AKIL KURESHI), CJ



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