Pranab Kumar Deb, J. (Chairman) -
(1.) THE common issue as to whether survey instruments sold by the petitioners would come within the entry of serial No. 83(c) or 54B of Schedule C of the West Bengal Value Added Tax Act, 2003 having been raised in both the applications, namely, RN -78 of 2009 and RN -341 of 2009, both the matters have been heard and disposed of analogously by a common judgment. The applicant in RN -341 of 2009, namely, M/s. Sokkia India (P) Ltd. has been carrying on business of buying and selling of surveying instruments. It analyses total station, global positioning systems, theodolites, digital levels, automatic levels, etc. After the registration certificate was granted, the petitioner was paying tax on the said product at four per cent treating the item falling under entry 54B and 54C under entry 83(c) of Schedule C of the VAT Act while the assessing authority was pressing hard for payment of tax at 12.5 per cent treating the item under Schedule CA of the said Act. To clear the confusion the petitioner filed an application under section 102 of the West Bengal Value Added Tax Act, 2003 before the Commissioner of Sales Tax on September 29, 2008. The Commissioner of Sales Tax by his order dated March 25, 2009 (vide, case No. 24X/PRO/VAT/2008/124) opined that the surveying instruments belong to Schedule CA of the VAT Act taxable at 12.5 per cent. Being aggrieved the petitioner has assailed the order dated March 25, 2009 passed by the Commissioner, Sales Tax, West Bengal.
(2.) THE applicant in RN -78 of 2009, M/s. Lawrence & Mayo (I) Pvt. Ltd., as disclosed in the application, is carrying on business of sophisticated measuring tools including those used in survey. The petitioner, after commencement of the VAT Act with effect from April 1, 2005 had been initially paying tax on sales of measuring tools used in survey at 12.5 per cent. Subsequently, the petitioner came to know that other dealers are paying tax at four per cent on sale of such goods. The petitioner, thereafter, wrote to the Public Relation Officer of the Directorate of Sales Tax to know the rate of tax of the item mentioned hereinbefore, but no positive reply was received. In the above circumstances, the petitioner started to pay tax at four per cent on sales of measuring tools used in survey since March, 2008. On August 26, 2008, a team of officials of the Bureau of Investigation visited the place of business of the petitioner and seized books of accounts for the period from January 1, 2008 to August 25, 2008. The Sales Tax Officer, Bureau of Investigation, pressurised the petitioner to pay tax at 12.5 per cent in lieu of at four per cent. At the behest of the Sales Tax Officer, Bureau of Investigation, the petitioner was forced to pay Rs. 6,02,188 under the VAT Act, 2003. Claiming that the survey instruments are required to be taxed at four per cent, the petitioner has prayed for refund of Rs. 6,02,188. Aggrieved by and dissatisfied with the opinion passed by the Commissioner of Sales Tax, West Bengal and the verbal direction by the Sales Tax Officer, Bureau of Investigation, to pay tax at 12.5 per cent on sales of survey instruments, the petitioner through their respective applications have challenged the findings of the Commissioner, Sales Tax and the Sales Tax Officer, Bureau of Investigation.
(3.) APPEARING on behalf of the petitioner in RN -341 of 2009, Mr. Chakra -borty has submitted that in rejecting the contention of the petitioner, the assessing officer failed to appreciate the nature and user of the instruments. Mr. Chakraborty has submitted that it is a device to determine the height, elevation, differences and distances. It is also used for ascertaining the level. It is submitted that without surveying instrument, no work of construction is possible. The survey being an integral part of the construction, it would therefore, come within the meaning of measuring instrument as listed in entry 54B of Schedule C of the VAT Act, as urged by Mr. Chakraborty.;