SHRI ASHISH KUMAR DEY Vs. FOOD CORPORATION OF INDIA
HIGH COURT TRIPURA
Shri Ashish Kumar Dey
FOOD CORPORATION OF INDIA
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(1.) At the outset, we are constrained to observe that the law of pleadings with regard to writ petition is and should be a concise statement of relevant facts and of law. Apparently, unmindful of this salutary principle, the petitioners in both the writ petitions have chosen to plead many unnecessary facts and at the same time have left out the vital points so much so that it becomes imperative on our part to imagine by ourselves as to what they really want from this Court. We at first thought of releasing the cases from CAV and asked the petitioners to furnish better and further particulars. However, thanks to the counter-affidavit filed by the Staterespondents, the important facts missing in the cases of the petitioners have now been brought to our notice. This, therefore, obviates the necessity to re-hear the cases.
(2.) Following the decisions of this Court as affirmed by the Apex Court holding that the contract for transportation of foodgrains executed for and on behalf of the FCI did not involve transfer of right to use goods within the meaning of Article 366(29A)(b) of the Constitution, the amounts deducted from the bills of the petitioners became refundable to them. The FCI admittedly neither deposited the entire amount with the State-respondents during the statutory period nor refunded the same to the petitioners when legitimately due to them. The common question of law involved in both the writ petitions is whether the Food Corporation of India (FCI) is liable to pay interest on the amount deducted by it from the bills of the petitioners which they failed to deposit with the State-respondents during the period stipulated by sub-Rule (3) of Rule 7 of the Tripura Value Added Tax rules, 2005 ("the Rules" for short)? Before proceeding further, it may not be out of place to reproduce below the provisions relating to the TDS from the bills of a contractor and the manner in which the amount so deducted is to be dealt with. They are provided for in Rule 7 of the Rules, which read thus:
"7. (2) Every person responsible for making payment to any person for discharge of any liability on account of valuable consideration payable for any transfer of the right to use any goods other than the goods in exempted list of the Act for any purpose (whether or not for a specified period) for cash or in any manner, shall at the time of making such payment deduct an amount at the rate as notified by the Government from time to time of the payment on account of such transfer of right : provided that till the Government notify the rate, the prevailing rate shall continue:
Provided no such deduction shall be made from the bill (s) or invoice (s) of the transferer where the amounts received as penalty for defaults in payment or as damages for any loss or damage caused to the goods by the person to whom such transfer was made, and
(3) The amount deducted under Sub-rules (l) and (2) shall be deposited into the Government Treasury by challan in Form XVIII by the person making such deduction within 7 day of the month following that in which the deduction is made.
(4) The person making such deduction under sub-rule (l) and (2) shall, at the time of payment or discharge, furnish to the person from whose bill(s) and invoice(s) such deduction is made, a certificate in Form XI specifying the amount deducted and the rate(s) at which it has been deducted.
(10) If any person as is referred to in sub-rule (1) and (2) of this Rule fails to make deduction or after deducting, fails to deposit the amount so deducted as required by sub-rule (3) the Superintendent of Taxes may after giving such person opportunity of being heard, by order in writing, direct that such person shall pay, by way of penalty a sum not exceeding one and a half times the amount not so deducted and/or deposited into the Government Treasury.
(11) Without prejudice to the provisions of sub-rule(10), if any such person fails to make the deduction or, after deducting fails to deposit the amount so deducted, he shall be liable to pay simple interest at the rates contained in section 44 (45?) of the Act, on the amount so deducted, and/or deposited from the date on which such amount was deductible to the date on which the amount is actually deposited."
(3.) Plainly stated, a combined reading of sub-Rules (2) and (3) of Rule 7 of the Rules so extracted plainly shows that the person responsible for making payment (FCI in this case) to any person (the petitioner in this case) is required to deduct from the bills of the petitioner any sum payable for the transfer of the right to use any goods other than goods in the exempted list of the Tripura Value Added Tax Act, 2004 ("the Act" for short) and that the amount so deducted shall be deposited into the Government Treasury by the person making such deduction within 7 days of the month following that in which the deduction is made. Sub-Rule 11 mandates that if such person fails to make the deduction or, after making the deduction fails to deposit the amount so deducted, he shall be liable to pay simple interest at the rates contained in Section 44 (it should be read as "Section 45") of the Act on the amount so deducted.;
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