P.K.LOHRA, J. - (1.) FEELING aggrieved from the impugned judgment and order dated 24th of July 2013, passed by the learned Single Judge, the appellant/petitioner has preferred this intra -Court appeal. The learned Single Judge, by the impugned judgment and order has declined to upset the order/communication dated 9th July 2012 and has further turned down the prayer of the appellant for charging exemption fee @ 1.5% instead of 3% from the date of issuance of Notification dated 26th of March 2012.
(2.) THE facts necessary and germane for appreciating and thrashing out the lis involved in the matter are that appellant -petitioner is a registered partnership firm duly registered under the provisions of Partnership Act 1956. The appellant firm is engaged in execution of various contracts awarded by the State Government, Central Government and its other instrumentalities and is enjoying status of Class 'AA' Contractor. The appellant is undertaking various contracts in the entire State for constructing building structures and other allied works including renovation works. It so happened that the State Government published a 11th Notification No.F.12(63)FD/Tax/2005 -80 dated of August 2006 in exercise of powers conferred upon it under sub -section (3) of Section 8 of the Rajasthan Value Added Tax Act 2003 (for short, 'Act of 2003') exempting the registered dealers engaged in execution of works contract from payment of tax leviable on transfer of property and goods on payment of exemption fee. Clause (2) of 11th Notification No.F.12(63)FD/Tax/2005 -81 dated of August 2006 envisaged a condition that a contractor is exempted from payment of tax if he moves an application within 60 days from the date of award of contract offering to pay the requisite exemption fee provided in the Notification. Laying emphasis on the said clause of the 11th Notification dated August 2006, the appellant - petitioner has pleaded in the writ petition that stipulation aforesaid is clear that option to shift for payment of exemption fee and payment in accordance with the Notification is one time option available to the contractor and as such the rights, entitlement and/or liabilities arising in accordance with law shall remain confined as on the date of the application. The appellant -petitioner has also referred to Notification of even date issued by the State Government in exercise of powers under sub -sec.(2) of Section 20 of the Act of 2003 read with rules of 2006 providing for deduction of tax @3% in lieu of tax at the time of making payment by any mode. While laying emphasis on the proviso to the said Notification, the appellant has pleaded that in terms of the proviso if the contractor is having exemption certificate under the earlier Notification, the awarder shall deduct in lieu of tax an amount equivalent to a rate of exemption fee as mentioned in the exemption certificate. According to the version of the appellant - petitioner, he submitted an application in the prescribed form before the Commercial Taxes Officer, Circle Jhunjhunu, seeking exemption certificate as per dated 11th of August 2006, wherein he has specifically mentioned the description of work, date of award of contract, total value of contract, and rate of exemption fee @ 1.5%. The appellant has also asserted that in the application for issuance of exemption certificate the total exemption fee was also incorporated as per the prevailing exemption fee under the aforesaid Notification. The appellant has further made endeavour to plead in the writ petition that similar applications were submitted pursuant to other contracts, which were carried out by the firm in the State of Rajasthan, and has asserted that exemption certificates were also issued by the competent authority for the same.
(3.) THE genesis of the litigation, as projected in the writ petition, was Notification issued by the State Government dated 26th of March 2012 bearing No.F.12(15) Finance/Tax/12/114, whereby the State Government has revised the rate of exemption fee and the schedule provided under the earlier Notification dated 11th of August 2006 was substituted. As a matter of fact, the Notification dated 26th of March 2012 has enhanced the exemption fee from 1.5% to 3%, however, there was no corresponding increase in the rate of tax. In the Notification, there is a clear stipulation that it shall be applicable prospectively from 1st April, 2012. Construing the language employed under the Notification dated 26th of March 2012 to its advantage, the appellant made an endeavour to plead in the writ petition that the said Notification is intended to cover the contracts awarded after 1.4.2012, or in the alternative, it is applicable vis -à -vis exemption certificates granted after 1.4.2012.;