Arriving at taxable turnover arbitrarily under TNVAT Act without giving value of goods and services untenable

Tvl.R.Rama Rao Vs Assistant Commissioner (ST) (Madras High Court)

Madras High Court held that the arriving at taxable turnover arbitrarily without giving particulars of the value of the goods and value of the services untenable under Tamil Nadu Value Added Tax Act (TNVAT Act).

Facts- The petitioner has preferred the present writ as being aggrieved by the impugned order dated 01.06.2022. The estimated taxable turnover has been arrived at Rs.19,81,79,432/-, by deducting 30% towards labour charges and like charges from the total contract income of Rs.28,31,13,474/- reported in the Profit & Loss Account.

The petitioner is a Civil Contractor and executes works contracts for statutory Corporations and State Departments such as Greater Chennai Corporation, Highways and Rural Works Department, etc. The petitioner had earlier filed a petition and had prayed for a mandamus to direct the respondents therein to consider and grant a refund of the TDS (deduction of tax at source) amount of Rs.56,18,991/- to the petitioner covered by certificate in Form T and statement of tax deduction at source in Form R filed by the Greater Chennai Corporation.

The said Writ Petition was disposed of by this Court by its order dated 14.12.2021 without expressing any opinion on merits by directing the respondents therein to consider the representation dated 07.11.2018 and 02.07.2021 of the petitioner. By these representations, the petitioner had requested the 1^st respondent therein, the respondent herein to refund an amount of Rs.56,18,991/- to the petitioner which is said to have been deposited by the Greater Chennai Corporation as TDS while paying the amounts to the petitioner u/s. 13 of the TNVAT Act, 2006.

The specific case of the petitioner is that the respondent had wrongly determined the taxable turnover under Rule 8(5)(d) of the TNVAT Rules, 2007, r/w Section 5 of the TNVAT Act, 2006.

Petitioner also asked to furnish the proof regarding the filing returns and payment of tax by the Sub-Contractors in respect of item No.10 (Deduction of TDS) and to furnish the details of unregistered purchases for the liability arrived u/s. 12 (name and address of the seller). The respondent has passed the impugned order dated 01.06.2022.

Although the petitioner has an alternate remedy by way of an appeal before the Appellate Authority under the provisions of the TNVAT Act, 2006, the petitioner has challenged the impugned assessment order dated 01.06.2022.

Conclusion- The petitioner cannot arrive at the taxable turnover arbitrarily without giving particulars of the value of the goods and value of the services and other items to claim deduction involved to arrive at an arbitrary taxable turnover contrary to scope of Rule 8(5) of the TNVAT Rules, 2007 by merely adding 15% to the value of the purchases. The petitioner was duty bound to give particulars.

Since, it is the case of the petitioner that few more TDS certificates have been issued to the Petitioner by the Greater Corporation of Chennai, the petitioner is directed to furnish the same to the respondent within thirty (30) days from the date of receipt of a copy of this Order.

FULL TEXT OF THE JUDGMENT/ORDER OF MADRAS HIGH COURT

The petitioner is aggrieved by the impugned order dated 01.06.2022 passed by the respondent for the assessment year 2016-2017.

2. The taxable turnover of the petitioner has been arrived as Rs.21,67,26,240/- in the impugned order dated 01.06.2022 as detailed below:

Total turnover – Rs.21,67,26,240/-

Taxable turnover – Rs.21,67,26,240/-

3. On the aforesaid amount, the tax due of the petitioner has been arrived as detailed below:

4. The above table indicates that the reported turnover as per the returns comes to only Rs.10,19,52,599/- (Rs.9,63,47,907/- + Rs.56,04,692/-). However, in the beginning of the impugned order in the second table, the reported turnover has been arrived as Rs.10,65,71,282/-.

5. The estimated taxable turnover has been arrived at Rs.19,81,79,432/-, by deducting 30% towards labour charges and like

6. The petitioner is a Civil Contractor and executes works contract for statutory Corporations and State Departments such as Greater Chennai Corporation, Highways and Rural Works Department, etc. The petitioner had earlier filed W.P.No.26508 of 2021. The petitioner had prayed for a mandamus to direct the respondents therein to consider and grant refund of the TDS (deduction of tax at source) amount of Rs.56,18,991/- to the petitioner covered by certificate in Form T and statement of tax deduction at source in Form R filed by the Greater Chennai Corporation.

7. The said Writ Petition was disposed of by this Court by its order dated 14.12.2021 without expressing any opinion on merits by directing the respondents therein to consider the representation dated 07.11.2018 and 02.07.2021 of the petitioner. By these representations, the petitioner had requested the 1^st respondent therein, the respondent herein to refund an amount of Rs.56,18,991/- to the petitioner which is said to have been deposited by the Greater Chennai Corporation as TDS while paying the amounts to the petitioner under Section 13 of the TNVAT Act, 2006.

8. Taking note of the aforesaid order dated 14.12.2021 of this Court in W.P.No.26508 of 2021 and pursuant to the proceedings that came to be initiated earlier vide notice dated 10.07.2019, 10.09.2019 and revised notice dated 30.11.2020, the impugned order has been passed.

9. By the impugned order, the respondent has demanded a sum of Rs.80,04,427/- from the petitioner after adjusting ITC that was available and the TDS deducted by the Greater Chennai Corporation to arrive at the aforesaid figure as detailed below:

10. Pending this Writ Petition it is submitted that the Greater Chennai Corporation has issued few TDS certificate leaving a balance of approximately Rs.6,00,000/- only to be issued.

11. The specific case of the petitioner is that the respondent has wrongly determined the taxable turnover under Rule 8(5)(d) of the TNVAT Rules, 2007, r/w Section 5 of the TNVAT Act, 2006. The first notice which preceded the impugned order is dated 10.07.2019. Thereafter, the second notice dated 10.09.2019 was issued to the petitioner based on the income declared by the petitioner in the Profit & Loss Account and the amount reported in Form WW under TNVAT Act, 2006, r/w TNVAT Rules, 2007.

12. A sum of Rs.9,16,08,150/- was arrived as the suppressed taxable turnover which was proposed to be assessed at 5% and 14.5% in the ratio of 70:30 as detailed below:

13. That apart, several discrepancies were also pointed out under the following heads:

(i) Purchase difference of Rs.1,96,208/-;

(ii) Purchases effected from unregistered dealer for Rs.34,50,508/- for being assessed at 5% under Section 12 of the TNVAT Act, 2006;

(iii) Turnover of Rs.9,63,47,907/- to be assessed at 5%;

(iv) Turnover of Rs.56,04,692/- to be assessed at 14.5%;

(v) ITC of Rs.10,37,164/- carried forward from 01.04.2016 asking the petitioner to furnish proof of records;

(vi) 6,50,599/- for exempted sales;

(vii) A sum of Rs.6,05,000/- for sale of Innova;

(viii) Hire income of Rs.11,49,978/- liable to tax under Section 4 of the TNVAT Act, 2006;

(ix) Assessment of Rs.5,07,876/- towards output tax due without filing any proof of records for payment of tax;

(x) Non-deduction of TDS for thee sub contracts awarded by the petitioner as follows:

(xi) Notice also called upon the petitioner to furnish copies of details of purchase effected from 10 vendors.

15. A further notice based on the above reply dated 11.12.2020 of the petitioner was issued on 03.12.2020, whereby, the petitioner was informed that an opportunity of personal hearing was fixed and that the petitioner was required to be appear on 14.12.2020 to represent the case with supporting documents as mentioned in the reply dated 24.07.2020.

16. In addition, the petitioner also asked to furnish the proof regarding the filing returns and payment of tax by the Sub-Contractors in respect of item No.10 (Non deduction of TDS) and to furnish the details of unregistered purchases for the liability arrived under Section 12 (name and address of the seller). The respondent has passed the impugned order dated 01.06.2022 bearing reference TIN:33491342690/2016-17.

17. Although, the petitioner has an alternate remedy by way of an appeal before the Appellate Authority under the provisions of the TNVAT Act, 2006, the petitioner has challenged the impugned assessment order dated 01.06.2022.

18. The present Writ Petition was filed by the petitioner on 04.07.2022 immediately after the impugned order dated 01.06.2022 was served within the statutory period prescribed for filing the appeal before the expiry of limitation for filing statutory appeal before the Appellate Authority had expired.

19. Arguing on behalf of the petitioner, the learned Senior Counsel for the petitioner submits that the petitioner had resorted to valuation for the purpose of Section 5 r/w Rule 8(5)(d) of the TNVAT Act, 2006 r/w TNVAT Rules, 2007 as per the ratio of the Hon’ble Division Bench of this Court in Tax Case (Revision) Nos.31 to 34 of 2017 vide its order dated 10.01.2018.

20. It is submitted that the Hon’ble Division Bench has considered the difficulties of dealer that it is not possible to cull out each and every item transferred along with related Gross Profit and thus the dealer can arrive at the taxable turnover notionally by calculating the deemed sales value by adding a percentage to the value of purchase.

21. It is submitted that it is the practice of the dealers to adopt 10% gross profit on the purchase value of the items used in the execution of works contract to arrive at the deemed sales turnover for which tax at the respective rate was paid to the Department.

22. The learned Senior Counsel for the petitioner further submits that the said decision was also rendered in the context of provisions of TNVAT Act, 2006 in the light of the practice adopted under Section 3-B of the TNGST Act, 1959. That apart, it is submitted that some of the issues which are framed especially one pertaining to sundry creditor, purchase bill was given up in the course of notice and reply. However, the same was confirmed vide the impugned order. Hence, it is submitted that the impugned order is liable to be quashed.

23. The learned Senior Counsel for the petitioner further submits that, a substantial part of the demand has also been paid and therefore one more opportunity may be given to the petitioner to explain the case afresh to the respondent in the light of decision of the Hon’ble Division Bench in the above case.

24. The learned Government Advocate for the respondent on the other hand submits that the present Writ Petition is not maintainable as none of the circumstances warranting invocation of Article 226 of the Constitution of India are attracted and therefore submits that the Writ Petition is liable to be dismissed.

25. It is further submitted that the petitioner has not produced any of the documents required for completing the assessment and therefore, the impugnged order has been passed in accordance with the provisions of the TNVAT Act, 2006 r/w TNVAT Rules, 2007.

26. In this connection, the learned Government Advocate for the respondent submitted that notice dated 10.09.2019 was issued to the petitioner wherein, it was proposed to levy tax on income from sundry creditors subject to petitioner furnishing the purchase invoices. However, the petitioner failed to furnish the details.

27. It is further submitted that the petitioner had filed a reply on 24.07.2020 along with few purchase bills and therefore it was not necessary to make another proposal in the subsequent notice dated 30.11.2020. It is submitted that the notice dated 30.11.2020 merely called upon the petitioner to furnish further details with regard to their reply dated 24.07.2020 and since, the petitioner failed to give any reply, the impugned order has been passed on merits.

28. The learned Government Advocate for the respondent further submits that what has been taxed is the difference between the total contract income as declared in the Profit & Loss Account less 30% to arrive at the estimated taxable turnover in absence of proper explanation.

29. It is submitted that the petitioner has declared the sales turnover of only Rs.10,65,71,282/- and thus there was a escaped turnover of Rs.9,16,08,150/- which has been correctly arrived. That apart, it is submitted that there are several other issues which have been considered in the impugned order dated 01.06.2022 and therefore the impugned order dated 01.06.2022 does not warrant any interference under Article 226 of the Constitution of India and therefore the petitioner should be asked to approach the Appellate Authority.

30. I have considered the arguments advanced by the learned Senior Counsel for the petitioner and the learned Government Advocate for the respondent.

31. Section 5(1) of the TNVAT Act, 2006 is the charging provisions for works contract. The taxable turnover is to be determined under Rule 8(5) of the TN VAT Rules,2007. Only the amounts specified in Clauses (a) to (i) to Rule 8(5) of the TNVAT Rules, 2007 are to be allowed to be deducted for determining the taxable turnover in the case of works contract.

32. Section 5(1) of the TNVAT Act, 2006 and Rule 8(5) of the TNVAT Rules, 2007 reads as under:-

(*See the next paragraph)

33. Table to Rule 8(5)(d) of TNVAT Rules, 2007 reads as under:-

34. In alternative, a dealer had an option to pay tax at the compounded rate under Section 6 of TNVAT Act, 2006. In this case, the petitioner has opted to pay tax under Section 5(1) of the TNVAT Act, 2006

35. As per clause (c) to Sub Rule (5) to Rule 8 of TN VAT Rules, 2007, all amounts paid to the sub-contractors as consideration for execution of works contract whether wholly or partly is to be deducted.

36. .However, proviso to clause (c) to Sub Rule (5) to Rule 8 of the TN VAT Rules,2007 indicates that no such deduction shall be allowed unless the dealer claiming deduction, produces proof that the sub­contractor is a registered dealer liable to pay tax under the Act and that the turnover of such amount is included in the return filed by such sub-­contractor.

37. As per Clause (d) to Sub Rule (5) to Rule8 of the TN VAT Rules, 2007 all amounts actually incurred towards labour charges and other charges not involving any transfer of property in goods. In connection with the execution of works contract are to be allowed as deduction as per the Books of Account.

38. If such amounts are not ascertainable from the Books of Account maintained and produced by the dealer before the Assessing Officer, deduction has to be allowed only at the specified percentage in the table to the aforesaid Rule.

39.In other words, if amount is not ascertainable from the books of Accounts maintained and produced by a dealer before the assessing authority, deduction shall be of such amount as is calculated at the rate specified in column (3) of the Table to Rule 8(5) of the TNVAT Rules, 2007.

40.The decision of the Hon’ble Division Bench of this Court in Tvl. LTD Cementation India Ltd., Vs. State of Tamil Nadu in Tax Case (Revision) Nos.31 to 34 of 2017, which was heavily relied upon by the Senior Counsel for the Petitioner, was rendered in the context of contract with National Highways Authority of India (NHAI) for construction of container terminal in Chennai. There the Tribunal had earlier ordered as under:-

“The respondent dealer have not maintained the proper accounts as stipulated under rule 8(5) of the TNVAT Rules 2007. The respondent dealer failed to produce related accounts so as to arrive a taxable turnover under Section 5 of the TNVAT Act 2006. Merely on surmise and approximation the respondent dealer had chosen to adopt 5% Gross Profit to arrive the deemed sales turnover. Thus the Assessing Officer is left with no other options except to follow the convention and procedures as being adopted by other dealers of this type of business namely civil works contractors adopting 10% Gross Profit to arrive deemed sale turnover under Section 5 of the TNVAT Act 2006.”

41. The said decision was upheld by the Hon’ble Division Bench of this Court. The Tribunal had concluded that the Assessing Officer has rightly assessed VAT liability by adding 10% on the gross profit on the purchase turnover recorded under 4% and 12.5% of the commodities respectively.

42. The Hon’ble Division Bench of this Court took note of the nature of the project executed and the gross profit earned and after considering the audited Profit & Loss Account, balance sheet and the certificate issued by the Chartered Accountant for the relevant year.

43. It also has to be kept in mind that as per Section 13 of the TNVAT Act, 2006, every person responsible for paying any sum to any dealer for execution of works contract, shall at the time of payment of such sum for the amount calculated at the rates specified therein.

44. As far as Civil Works Contract is concerned, deduction is to be made at 2%. As per Rule 9(i)(b) of the TNVAT Rules, 2007, any person who makes a deduction under Section 13 of Act, is required to pay the amount sum so deducted electronically to the Assessing Authority for making assessment along with a statement in electronic form on or before 20^th day of every succeeding month along with proof of payment.

45. The deductor has to issue a certificate of deduction of tax in Form-T and shall issue the same to the contractor which is available for being adjusted towards the tax liability.

46. In this case, the petitioner has executed that on the works contract for the Greater Chennai Corporation. The petitioner has also stated that for the works contract provided to the Greater Corporation of Chennai, the Greater Corporation of Chennai has deducted a sum of Rs.56,18,991/- as tax deduction at source which was subject matter of W.P.No.26508 of 2021.

47. The aforesaid amount of Rs.56,18,991/- would represent 2% of the total amount payable to the petitioner by the Greater Corporation of Chennai. Thus, the total value of the bill raised by the petitioner on the Greater Corporation of Chennai would be Rs.28,09,49,550/-(Rs.56,18,991/- X 100 / 2) if the Greater Corporation of Chennai was required to issue TDS for the aforesaid amount of Rs.56,18,991/-.

48. The aforesaid amount of Rs.28,09,49,550/- more or less corresponds with the total income declared by the petitioner in the Profit & Loss account for a sum of Rs.28,31,13,474/-.

49. The petitioner claims that out of the aforesaid sum of Rs.56,18,991/-, only a sum of Rs.33,78,375/- was allowed and adjusted to tax liability. This is evident from a reading of the impugned order.

50. It is the case of the petitioner that further TDS certificate has been issued by the Greater Chennai Corporation to the petitioner pending this Writ Petition and only balance TDS for a sum of Rs.6 lakh (approximately) alone remains to be issued to petitioner by the Greater Chennai Corporation for being adjusted towards petitioner’s tax liability.

51. In paragraph No.10 of the Counter, it has been stated that although, the Petitioner has accepted that the petitioner has paid a tax on the deemed value of the material used in the “works contract” under Section 5 and same is acceptable.

52. At the same time, it also states that there was a huge difference in the “works contract” receipt, reported in the returns in the Profit and Loss Account. The stand of the respondent that it has not been properly explained with supporting documents by the petitioner is acceptable.

53. The petitioner was required to determine the taxable turnover out of Rs.28,31,13,474/- reported in the Profit & Loss Account for the works contract rendered to Greater Corporation of Chennai strictly in accordance of Rule 8(5) of the TN VAT Rules, 2007.

54. There, is no other method prescribed under Rule 8(5) of the TN VAT Rules, 2007. When law mandates a particular thing to be done in a particular manner, then it has to be done in that manner. This is accepted position of law. This principle was laid down by the Privy Council in Nazir Ahmad Vs. King Emperor, AIR 1936 PC 253 (II). The said principle has followed by the Hon’ble Supreme Court in several cases.

55. Attention is invited to the decision of the Hon’ble Supreme Court in State of U.P. Vs. Singhara Singh, AIR 1964 SC 358 and a recent decision of the Hon’ble Supreme Court in Union of India &Ors. Vs. Mahendra Singh in Civil Appeal No.4807 of 2022, wherein also the above view was followed.

56. This Principle will apply for determination of taxable turnover in the works contract under Rule 8(5) of the TN VAT Rules, 2007.

57. The petitioner cannot arrive at the taxable turnover arbitrarily without giving particulars of the value of the goods and value of the services and other items to claim deduction involved to arrive at an arbitrary taxable turnover contrary to scope of Rule 8(5) of the TNVAT Rules, 2007 by merely adding 15% to the value of the purchases. The petitioner was duty bound to give particulars. I am afraid of the view taken in Tvl. LTD Cementation India Ltd., Vs. State of Tamil Nadu in Tax Case (Revision) Nos.31 to 34 of 2017 cannot be applied in the light of the Rule 8(5) of the TNVAT Rules, 2007. Therefore, there is no merits in the challenge to the impugned order.

58.That apart there are other amounts which have been confirmed in the impugned order. Therefore, on this count also there is no scope for interference with the impugned order. I do not find any circumstances, which warrant an interference under Art. 226 of the Constitution of India.

59.Since, it is the case of the petitioner that few more TDS certificate have been issued to the Petitioner by the Greater Corporation of Chennai, the petitioner is directed to furnish the same to the respondent within a period of thirty (30) days from the date of receipt of a copy of this Order.

60.The 1^st respondent is directed to issue a corrigendum to the impugned order by revising the tax liability after adjusting the TDS certificates said to have been issued during the pendency of this Writ Petition, within a period of sixty (60) days from the date of receipt of a copy of this order.

61. The petitioner shall thereafter file an appeal before the Appellate Authority under the provisions of the TNVAT Act, 2006, within a period of ninety (90) days from the date of receipt of a copy of this order.

62. The Appellate Authority shall thereafter dispose of the appeal on merits and in accordance with law as expeditiously as possible preferably within a period of six (6) months from the date of receipt of a copy of this order.

63. This Writ Petition is liable to be dismissed and is accordingly dismissed with the above observations and liberty. Consequently, the connected Miscellaneous Petition is closed. No costs.