Tripura High Court
M/S John Energy Ltd vs The State Of Tripura And Others on 21 December, 2022
Author: Arindam Lodh
Bench: Arindam Lodh
HIGH COURT OF TRIPURA
AGARTALA
WP(C)No.985 of 2016
&
WP(C)No.986 of 2016
In WP(C)No.985 of 2016
M/s John Energy Ltd.
..........Petitioner(s)
Versus
The State of Tripura and Others
..........Respondent(s)
In WP(C)No.986 of 2016 M/S John Energy Ltd.
..........Petitioner(s) Versus The State of Tripura and Others ..........Respondent(s) For Petitioner(s) : Mr. G.N. Sahewala, Sr. Adv. For Respondent(s) : Mr. D. Bhattacharya, G.A. Mr. S. Saha, Adv.
HON'BLE THE CHIEF JUSTICE (ACTING) HON'BLE MR. JUSTICE ARINDAM LODH Order 21.12.2022 Heard Mr. G.N. Sahewala, learned senior counsel appearing for the petitioner as well as Mr. D. Bhattacharya, learned G.A. assisted by Mr. S. Saha, learned counsel appearing for the respondents. Page 2 of 4
2. The case in brief is that the after the amendment of Article 366 of the Constitution of India by the 46th Amendment of the Constitution, the State legislatures were competent to impose tax on the transfer of the right to use goods. Under Section 4 of the Tripura Value Added Tax, 2004, tax has been imposed in respect of transfer of right to use any goods at the rate as specified in the Schedule.
3. It is humbly submitted a conjoint reading of the applicable provisions of the Tripura Value Added Tax, 2004 would clearly reveal that there must be a transfer of the right to use any goods for the purpose of levy of Value Added Tax. In other words, transfer of the right to use any goods, for any purpose, is a conditions precedent for imposition of Value Added Tax. It is not a tax on the right to use or the use of any goods, but the same is a tax on transfer of the right to use the goods. Thus, unless and until the incident of the transfer of the right to use goods, in a given case, is present, a transaction would not become a sale even under the expanded definition of sale. Similarly, a transaction would not attract value added tax merely because the goods have been hired and the hiring charges have been paid to the person, who gives on hire the goods unless one can show that the transaction is not confined to use of the goods but it is in substance a transfer of the right to use the goods. For hiring one number of 100 MT Work over Rig for Tripura Asset of ONGC along with men power services, the proforma Respondent No.4 namely Oil & Natural Gas Corporation Ltd. entered into a contract agreement bearing No.BDA/MM/ONSG/WS/WOR-NOM/TRIPURA/2014-15/9010020742 dated 19.11.2014 with the petitioner. As per the contractual terms, if any tax under Page 3 of 4 the Tripura Value Added Tax Act, 2004 is leviable, the same shall be on account of the petitioner.
4. The petitioner submit that a perusal of the terms of the contract agreement dated 19.11.2014 entered into by an between the petitioner and the proforma respondent No.4 would clearly testify that the transaction involved under the Contract agreement dated 19.11.2014 cannot be construed as a transfer of right to use the goods in favour of the proforma respondent No.4 ONGC by the petitioner so as to render the transactions exigible to tax under the Tripura Value Added Tax Act, 2004. However, even though, the transaction was not exigible to tax under the Tripura Value Added Tax, 2004, tax was levied.
5. Being and aggrieved and dissatisfied by the said levy of tax under the provision of the Tripura Value Added Tax Act, 2004 in respect of the transaction involved under the Contract agreement dated 19.11.2014 the petitioner is compelled to approach this Court for grant of adequate reliefs as prayed which reads as under :
(a) It be not declared that the transaction involved/envisaged in the contract agreement bearing No.BDA/MM/ONSG/WS/WOR-NOM/TRIPURA/2014-
15/9010020742 dated 19.11.2014 entered into by and between the petitioner and the proforma respondent No.4 cannot be construed as a transfer of right to use goods so as to render the transactions eligible to tax under the Tripura Value Added Tax Act, 2004; and
(b) as to why a writ in the nature of Mandamus be not issued directing the Respondent authorities and proforma respondent No.4 to refund the amount of tax deducted at source from the bills of the petitioner under the provisions of the Tripura Value Added Tax, 2004 in respect of contract agreement bearing No.BDA/MM/ONSG/WS/WOR-
NOM/TRIPURA/2014-15/9010020742 dated 19.11.2014 amounting to Rs.1,815,520.
(c) as to why a writ in the nature of Certiorari be not issued quashing an setting aside the impugned instruction bearing Page 4 of 4 No.F.16051578083/Ch-V/2005/11834-36 dated 28th November, 2008 and memorandum No.F.1-7(6)-Tax/2002 dated 25/30th June 2005 tax at source from the bills of the petitioner under the provisions of the Tripura Value Added Tax, 2004 in respect of the contract agreement bearing No. BDA/MM/ONSG/WS/WOR-NOM/TRIPURA/2014- 15/9010020742 dated 19.11.2014 entered into by and between the petitioner and the proforma respondent No.4.
6. Today, when the matter is taken up, Mr. G.N. Sahewala learned senior counsel appearing for the petitioners in both the writ petitions being WP(C)No.985 of 2016 and WP(C)No.986 of 2016 has submitted before this court that the said writ petitions are squarely covered by a similar judgment of this court as well as the Hon'ble apex Court in Quippo Oil and Gas Infrastructure Ltd. versus State of Tripura and Others reported in (2015) 1 TLR 38, State of Tripura versus M/S H.R.S. Agency and Another in Civil Appeal No(s).4391/2014, The State of Tripura and Others versus versus M/S IOT Infrastructure & Energy Services Limited and Another in Civil Appeal Nos.1499/2017 arising out of SLP(C)No.1106/2016, M/S John Energy Limited versus The State of Tripura and Others [judgment dated 06.04.2021 in WP(C)No.723 of 2017].
Accordingly, in terms of the orders passed by the Division Bench, even the petitioner is entitled for refund, the respondents shall consider the same in accordance with law.
In terms of the above, the writ petitions are disposed of.
JUDGE CHIEF JUSTICE (ACTING) Sabyasachi B