D.N.PATEL,A.C.J. - (1.) RULE . Counsel for respondents are waiving notice of rule.
(2.) COUNSEL appearing for the petitioner prays for interim relief. Petitioner is pressing for stay to be granted against the notification issued by the State of Jharkhand, which is at Annexure 4 dated 3.10.2012 and they are also seeking stay against the deduction of T.D.S by respondent nos. 4,5 and 6. It is submitted by the counsel for the petitioner that the retrospective effect of the notification cannot be given. He has also drawn the analogy of the Income tax and has pointed out that once the income tax has already been paid, then the enhanced rate of income ­ tax cannot be made applicable to the assessee. Counsel for the petitioner has also argued on double taxation on the ground that monthly bills raised by the petitioner contractor have already been paid by deduction of the T.D.S., and therefore, enhanced rate of T.D.S vide notification dated 3.10.2012 cannot be given retrospective effect from 1.4.2012. Counsel for the petitioner has also relied upon the words "at the time of making payment ..........." used in Section 44 of Jharkhand Value Added Tax Act, 2005( for the sake of brevity hereinafter referred to as JVAT Act, 2005). It is also submitted that on the basis of National Litigation Policy, once the stay is granted in similarly situated matters by this Court, should be followed by the State as well as by the Central Government authorities. None of these contentions are accepted by this Court for the grant of interim relief mainly for the following facts and reasons : (i) The petitioner is a contractor connected with "construction of new Integrated Passenger Terminal Building at Birsa Munda Airport, Ranchi". This work contract was given to the petitioner in the month of February, 2009. The work was to be executed by the petitioner in a phasewise. Counsel for the petitioner was asked a question by this Court whether the work has actually been completed or not and he is unable to give the reply. (ii) It further appears that when the contractor is doing the work of any construction, normally they are raising the bills at several intervals. These bills are to be adjusted towards the final bill. Similarly, at a regular interval, the government or governmental authority is also making payment, but these payments are not final because the bills are not final. Thus, the raising of the bills at a regular interval and the payment thereof is nothing but a running process. Every payment is to be adjusted as and when the work is completed. Thus, the analogy which is raised by the counsel for the petitioner of income tax that once the income tax is paid and if the rates are enhanced, later on it cannot be given effect to, here the facts are absolutely different because the bills are raised phase wise. The payment is also made towards some of the bills to the contractorpetitioner, phase wise and always these payments are to be set off towards the full and final payment of the contract. Thus, "at the time of making payment ­ the words, which are used under Section 44 of the JVAT Act, 2005, are to be interpreted in the context of last full and final payment. As and when this last full and final calculation is made by the Airport Authority and when the left out amount is paid or lastly outstanding amount is to be paid after, all the earlier payments set off, at that time, T.D.S is also to be adjusted and to be deducted. Thus, there is a, prima facie, case in favour of the respondent Nos. 4,5 and 6. As this writ is admitted and pending for its final hearing, we are not much analysing the facts. (iii) The balance of convenience is also not in favour of this petitioner mainly for the fact that full and final payment is yet to be made for the whole work in question. The full and final calculation of the exact amount legally payable is also yet to be made, and therefore, looking to the words of Section 44 of JVAT Act, 2005, and also looking to the facts that the respondent authority is wholly owned, managed and controlled by the Government is a "State" within the meaning of Article 12 of the Constitution of India, if this petition is allowed, then the money can be returned by the respondents whereas if the stay is granted at this stage and finally if this petition is dismissed, the amount once given in the hands of the petitioner, may not be recoverable. It has also been held by the Hon'ble Supreme Court in case of Mafatlal Industries Ltd. Versus Union of India reported in (1997) 5 SCC 536 (in paragraph 80 and paragraph 108 (iii) and (iv)) and in the case of Automotive Tyre Manufacturers Association Versus Authority Designated and Others reported in (2011) 2 SCC 258 (para 86 to 89) that more than prima facie case is necessary in favour of the petitioner before granting stay against the revenue because the government has to purchase the services and salary are to be paid in cash. Here, the petitioner has no prima facie case, moreover, the balance of convenience is also not in favour of the petitioner and no irreparable loss is caused to the petitioner if the stay as prayed for is not granted by this Court because the money which is to be deducted by way of T.D.S by the respondents, will remain with the respondents and if the matter is allowed, the same can be returned.
(3.) COUNSEL for the petitioner has also argued the case in detail but all the points are not being answered in this order because the petition is admitted by this Court, otherwise, nothing will remain to be decided at the time of final hearing.;