THE STATE OF TRIPURA & ANR versus CHANDAN DEB & ORS. on 24 March 2023

1. Feeling aggrieved and dissatisfied with the impugned commonjudgment and order dated 29.08.2007 passed by the Gauhati High Courtby which the Division Bench of the High Court has dismissed the writappeals preferred by the State of Tripura which were against thejudgment and order passed by the learned Single Judge declaring Rule3A(2) of the Tripura Sales Tax Rules, 1976 (hereinafter referred to asthe ‘TST Rules’) as ultra vires to the Tripura Sales Tax Act, 1976(hereinafter referred to as the ‘TST Act’) and partly allowing the appealspreferred by the original writ petitioners quashing and setting aside thatpart of the judgment and order passed by the learned Single Judge bywhich it was held that the original writ petitioners were liable underSection 3AA of the TST Act, the State of Tripura has preferred thepresent appeals.

2. That the Tripura Sales Tax Act, 1976 was enacted in the year1976 containing provisions for the levy of tax on sale on certain goods inTripura. Section 3A provided for tax on transfer of property in goodsinvolved in execution of works contract. Section 3AA provided fordeduction of tax at the time of payment. Section 44 provided for powerto make Rules. In exercise of the Rule making power under Section 44of the TST Act, the Tripura Sales Tax Rules, 1976 came to be enacted.Rule 3A(2) provided for deduction of tax at source equal to 4% ontransfer of rights to use goods.

2.1 The Revenue Department of the State of Tripura issuedmemorandum in the year 1992 for deduction of 4% tax at source underSection 3A of the TST Act.

2.2 Tender notices were issued by the ONGC, Gas Authority ofIndia Ltd., FCI for hiring vehicles. Work orders were issued in favour ofthe original writ petitioners. Agreements were entered into between theoriginal writ petitioners and GAIL, ONGC, FCI etc. respectively.

2.3 The original writ petitioners – suppliers of the vehicles filedthe writ petitions before the learned Single Judge challenging the viresof Rule 3A(2) of the TST Rules and also for refund of the amount sodeducted on the ground that there is no charging provision under theTST Act for levy of sales tax on transfer of the right to use goods and,hence, Rule 3A of the TST Rules, which makes it mandatory for persons, A

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Aresponsible for making payment of the bills of the transferer of the rightto use goods, to deduct, at source, sales tax at a flat rate of 4% is ultravires the TST Act. One another ground of challenge to Rule 3A wasthat Rule 3A suffers from absence of delegation of power and, hencethe memorandum issued in the year 1992 is invalid and cannot be enforced.

B2.4 All the writ petitions were resisted by the State contendinginter alia that the transactions involved amounted to ‘Sale’ within themeaning of 2(g)(ii) of the TST Act and that as per the second proviso ofSection 3(i) of the TST, Tax at 4% of the valuable consideration, shall bepayable on transfer of the right to use any goods for any purpose and,hence, Rule 3A(2), prescribed merely a mode of recovery of sales taxCwhich is otherwise due and payable and thus Rule 3A(2) is valid.

2.5 Learned Single Judge declared Rule 3A(2) as ultra vires theTST Act. However, the learned Single Judge held that the suppliers areliable to pay sales tax under Section 3AA of the TST Act. Aggrieved bythe judgment of learned Single Judge, the State preferred writ appealsDbefore the Division Bench of the High Court. The original writ petitioners– suppliers also filed the writ appeals before the Division Bench aggrievedby that part of the judgment of the learned Single Judge where it washeld that the original writ petitioners – suppliers are liable to pay salestax under Section 3AA of the TST Act.

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2.6 The Division Bench considered the following two issues:

(i) Whether authority vests in the Revenue Dept. to directdeduction at Source for payment of Sales Tax from Bills ofany person who transfers right to use any goods for anypurpose?

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(ii) Whether Rule 3A(2) is a valid piece of delegatedLegislation?

2.7 During the pendency of the writ appeals, the TST Act hasbeen replaced by the Tripura VAT Act, 2004 w.e.f. 01.04.2004. Therefore,as such the dispute is for the period prior to 01.04.2004.G

2.8 By the impugned common judgment and order the DivisionBench of the High Court has dismissed the appeals of the State and hasallowed the appeals of the original writ petitioners – suppliers and hasheld that Rule 3A(2) is ultra vires TST Rules and TST Act. The DivisionBench of the High Court has also set aside that part of the judgment ofH

the learned Single Judge where it was held that the supplier – originalwrit petitioners are liable under Section 3AA of the TST Act.

2.9 Feeling aggrieved and dissatisfied with the impugned commonjudgment and order passed by the Division Bench of the High Court, theState of Tripura has preferred the present appeals.

2.10 While granting the leave this Court has framed the followingquestion of law:

“Whether Sub-rule (2) of the Rule 3A of the TST Rules can bedeclared ultra vires being contrary to the provisions of the ‘TSTAct’, though there is express proviso in Section 3(1) for levy of4% Sales Tax on any transfer of the right to use any goods forany purpose?”

3. Ms. Madhavi Diwan, learned ASG and Shri Shuvodeep Roy,learned counsel have appeared on behalf of the State of Tripura, ShriAhanthem Henry, learned counsel has appeared for respondent no.1 inall the matters, Shri Somiram Sharma, learned counsel has appeared onbehalf of the ONGC and Shri Abhay Kumar, learned counsel has appearedon behalf of the FCI.

4. Ms. Madhavi Diwan, learned ASG appearing on behalf of theState has vehemently submitted that in the facts and circumstances ofthe case and taking into consideration the relevant provisions of the TSTAct, the High Court has committed a very serious error in declaringRule 3A(2) of the TST Rules as ultra vires to TST Act.

4.1 It is submitted that as such Rule 3A, which provides for thetax deduction at source, is a machinery provision with respect to taxleviable under the TST Act. Rule 3A(2) provides for the manner ofdepositing tax in a sale transaction and does not change the person liableto be taxed, i.e. the dealer under the TST Act or the tax liability in anymanner.

4.2 It is further submitted that the transaction of hiring of vehiclesby ONGC, GAIL and FCI falls within the definition of Sale under Section2(g) of the TST Act and is subject to tax. It is submitted that TST Actprovides for a deemed sale where there is ‘transfer of right to use anygoods for any purpose”. It is submitted that in the subject transaction,the right to use of car/vehicles is being transferred and therefore, thetransaction is a sale for the purposes of TST Act. Reliance is placed onSection 2(g) of the TST Act.

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A4.3 It is submitted that the supplier being the person making thedelivery or transfer within the meaning of Section 2(g)(ii) falls within thedefinition of the term ‘Dealer’ as provided under Section 2(b) of theTST Act. It is submitted that therefore, the supplier – original writ petitionerwould fall within the definition of ‘Dealer’ as he is a person ‘selling’taxable goods in terms of the TST Act by transferring the right to useBthe goods in question.

4.4 It is further submitted by Ms. Diwan, learned ASG that Section3(1) is the charging section under the TST Act, which provides forimposition of tax and makes the dealer liable for payment of the same.

C4.5 It is submitted that the TST Act provides for delegatedlegislation and rule making power is provided under Section 44 of theTST Rules.

4.6 It is submitted that Rule making power under Rule 44 is inclusiveand wide enough to cover the procedure for recovery including taxdeduction at source. It is submitted that therefore Rule 3A(2) whichDprovides for tax deduction at source at the hands of the transferee of theright to use goods is a machinery provision which can be provided in theRules. It is submitted that further, all rules framed in furtherance ofSection 44 are placed before the state legislature.

4.7 It is further submitted that the impugned Rule 3A(2) does notEin any manner change the liability to pay the tax from the dealer and thedealer continues to remain liable to pay the tax.

4.8 It is submitted that thus Rule 3A(2) provides is only for amachinery/mechanism where the person buying the goods deducts taxat source and deposits the same with the Revenue. It is submitted that itFdoes not in any manner change the chargeability of tax or liability to paythe tax. It is submitted that therefore, the provisions relating to taxdeduction at source are machinery provisions. Being a machineryprovision, the same can be provided in rules.

4.9 It is submitted that even the tax deducted at source is neitherGthe final payment of tax nor assessment of tax. It is submitted that in thepresent case, the payment and assessment of tax continues to be of thedealer. Reliance is placed upon the decision of this Court in the case ofPILCOM vs. CIT, (2020) 19 SCC 409 (paragraphs 36 to 38).

4.10 Ms. Madhavi Diwan, learned ASG has further submittedHthat in the case of CIT vs. Eli Lilly & Co. (India) (P) Ltd., (2009) 15

SCC 1, this Court has been pleased to consider the issue whetherprovisions pertaining to deduction of tax at source are independent ofcharging provisions on the premise that the same is only a machineryprovision.

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4.11 Ms. Diwan, learned ASG has further submitted that in thepresent case the TST Act and the Rules clearly fulfil all the requirementsfor a valid taxing statute and provide for all components required for ataxing statute. It is submitted that as observed and held by this Court inthe case of CCE & Customs vs. Larsen & Toubro Ltd., (2016) 1SCC 170 there shall be four components for a valid levy of tax namely B

(i) character of the imposition known by its nature whichCprescribed the taxable event attracting the levy;

(ii) a clear indication of the person on whom the levy is imposedand who is obliged to pay the tax;

(iii) the rate at which the tax is imposed and; D

(iv) the measure or value to which the rate will be applied forcomputing the tax liability.

It is submitted that in the present case all those components for avalid taxing statute are provided under the TST Act and the TST Rules.

4.12 It is further submitted that there is no change in chargeabilityof the Tax by introduction of Rule 3A(2) nor is a new levy created andRule 3A(2) only provides for the mechanism of tax deduction at sourceand therefore, Rule 3A(2) cannot be said to be ultra vires to TST Actand TST Rules as observed and held by the High Court.

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Making above submissions it is prayed to allow the present appeals.

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5. All these appeals are opposed by learned counsel appearing onbehalf of the respective respondent no.1 – original writ petitioners –suppliers. It is vehemently submitted that in the facts and circumstancesof the case, the Division Bench of the High Court has not committedany error in declaring Rule 3A(2) of the TST Rules as ultra vires to TSTAct and the TST Rules.

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5.1 It is submitted that as such the learned Single Judge allowedthe writ petitions and held sub-rule 2 of Section 3A providing for salestax deduction @ 4% at source to be ultra vires to TST Act and set asidethe memorandum issued by the State Government providing for deduction H

Aof sales tax while making payment of bill amounts of the suppliers of thevehicles by the companies. However, the learned Single Judge held thatthe sales tax liability of the parties who had given vehicles on hire willcontinue because of Section 3AA of the TST Act. It is submitted thatthe Division Bench of the High Court has rightly confirmed the judgmentand order passed by the learned Single Judge declaring Rule 3A(2) ofBthe TST Rules ultra vires, and has also rightly set aside the observationsand the findings recorded by the learned Single Judge that still the salestax liability of the parties who had given vehicles on hire will continuebecause of Section 3AA of the TST Act. It is submitted that the DivisionBench of the High Court has rightly corrected the view taken by theClearned Single Judge on applicability of Section 3AA of the TST Act.

5.2 It is further submitted by learned counsel appearing on behalfof the respondents – suppliers that the Division Bench of the High Courtin the impugned judgment and order has also rightly considered and heldthat the sales tax can be levied on sale of taxable goods and that theDliability to pay the sales tax is of a registered dealer under the Act andany person cannot be made liable to pay sales tax as was done by theState Government under sub-rule 2 of Rule 3A of the TST Rules. It issubmitted that in sub-rule 2 the requirement is deduction of sales taxwhile making payment to any person who has done transfer of right touse any goods for any purpose but the provisions of the TST Act provideEfor payment of sales tax by registered dealer of taxable goods and evenin case of any transfer of the right of any goods for any purpose thesales tax can be levied/deducted if the transfer of right to use is oftaxable goods and is done by a registered dealer under the Act.

5.3 It is further noticed and held by the Division Bench of theFHigh Court that for imposing sales tax on works contract there is chargingsection in the TST Act which is not there in case of persons involved intransfer of right to use any goods for any purpose.

5.4 It is further submitted that the respondents herein – supplierswho had given vehicles for use were not the dealers and were notGregistered under the Sales Tax Act and had not sold any goods in courseof their work and transfer of the right to use any goods for any purposehaving been done without being a dealer registered under the TST Actand the transfer of goods being not that of any taxable goods the deductionof sales tax amount at 4% would not be made under the TST Act orHunder the Rules and thus the deducted amount have rightly been refunded by the State Government/Companies to most of the vehicle suppliersduring the pendency of present cases here.

5.5 It is further submitted by the learned counsel appearing onbehalf of the respondents – suppliers that during the pendency of thepresent appeals and as there was no stay against the impugned judgmentand order passed by the High Court, in many cases the State Government/respective companies have refunded the amount due and payable to therespondents herein – original suppliers and therefore now as the impugnedjudgment and order passed by the High Court has been implemented bythe State Government/respective Companies the impugned judgment andorder passed by the High Court may not be interfered with now.

5.6 It is submitted that in absence of any charging section in theAct for deduction/levy of sales tax on those who were giving vehicleson hire for use of staff of companies, the same could not have beenprovided under the Rules. It is submitted that as rightly observed andheld by the High Court what cannot be done under the provisions of theAct for want of charging section in the Act cannot be done indirectly bytaking help of Rules as the Rules cannot supersede the provisions of theAct. It is submitted that therefore sub-rule 2 of Rule 3A of the TSTRules is rightly held to be ultra vires of TST Act.

6. Heard learned counsel appearing on behalf of the respectiveparties at length.

7. At the outset, it is required to be noted that while granting theleave to appeal this Court has framed the following question of lawwhich reads as under:

“Whether Sub-rule (2) of the Rule 3A of the TST Rules can bedeclared ultra vires being contrary to the provisions of the ‘TSTAct’, though there is express proviso in Section 3(1) for levy of4% Sales Tax on any transfer of the right to use any goods forany purpose?”

8. The learned Single Judge while allowing the writ petitionspreferred by the suppliers/dealers held and declared Rule 3A(2) of theTST Rules ultra vires to TST Act and quashed and set aside thememorandum issued by the Government providing for requirement ofdeduction of sales tax at 4% while making payment to any person whohas done transfer of any right to use any goods. However, the learnedSingle Judge observed and held that the sales tax liability of the parties A

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Awho had given vehicles on hire will continue because of Section 3AA ofthe TST Act. By the impugned judgment and order the Division Benchof the High Court has not only upheld the judgment and order passed bythe learned Single Judge declaring Rule 3A(2) of the TST Rules ultravires but has also set aside the findings recorded by the learned SingleJudge that the sales tax liability of parties who had given vehicles on hireBwill continue because of Section 3AA of the TST Act. Therefore, theshort question which is posed for consideration before this Court and asper the question of law framed by this Court while granting leave toappeal would be whether sub-rule 2 of Rule 3A of the TST Rules can besaid to be ultra vires to the provisions of the TST Act, though there isCexpress proviso in Section 3(1) for levy of 4% sales tax on any transferof the right to use any goods for any purpose?

8.1 While considering the aforesaid question the relevant provisionsof the TST Act and the TST Rules are required to be referred to whichare as under:

D“2(b)”dealer” means any person who sells taxable goodsmanufactured, made or processed by him in Tripura or brought byhim into Tripura from any place outside Tripura for the purpose ofsale of Tripura 1 [and includes Government and any person makinga sale under section 3A;”

E“2(g)”Sale” means any transfer of property, in goods for cash ordeferred payment or other valuable consideration, and includes—

(i) any delivery of goods on hire-purchase or any system ofpayment in instalments, F(ii) any transfer of the right to use any goods for any purpose(whether or not for a specified period) for cash, deferredpayment or other valuable consideration, and such delivery ortransfer of any goods shall be deemed to be a sale of thosegoods by the person making the delivery or transfer and apurchase of those goods by the person to whom such deliveryGor transfer is made but does not include a mortgage,hypothecation, charge or pledge;”

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“3. (1) Every dealer in taxable goods shall pay a tax on his turnoverat the rate specified in column (3) of the schedule attached to this H

Act : Provided that subject to the provisions of section 14 and 15of the Central Sales Tax Act, 1956 the State Government may,from time to time by notification in the Official Gazette and subjectto such conditions as it may impose, fix a higher rate of tax 3 [notexceeding forty percent or any lower rate of tax payable underthis Act on account of the sale of any taxable goods or class oftaxable goods specified in such notification ; and thereupon theSchedule shall be deemed to be amended accordingly:

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Provided further that the rate of tax on any transfer of the right touse any goods for any purpose (whether or not for a specifiedperiod) shall be 4%]”

“Section 3AA. Deduction of tax at the time of payments : Anyperson responsible for paying any sum to any person liable to paytax under section 3A of the Act, shall at the time of credit of suchsum to the account of the person or at the time of payment thereofin cash or by issue of a cheque or draft or any other mode, suchamount towards sales tax as may be prescribed.”

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“Section 44. (1) The State Government may, make rules forcarrying out the purposes of this Act.

(2) Without prejudice to the genererality of the foregoing power,such rules may, in particular prescribe—

(a) all matters required by this Act to be prescribed ; (b) the clauses and duties of officers appointed for the purposesof enforcing the provision of this Act;

(c) the procedure to be followed and the forms to be adopted inproceedings under this Act ; (d) the intervals at which, and the manner in which, the tax underthis Act shall be payable; (e) the dates by which and the authority to which returns shall befurnished ; (f) the manner in which refunds shall be made ; (g) the fees, ifany, for petitions, certificates and other; A

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(h) the nature of accounts to be maintained by a dealer ; and(i) For any other matter necessary for giving effect to the purposeof this Act.

(3) Every rule made by the State Government under this Act shallbe laid as soon as may be after it is made, before LegislativeAssembly while it is in session for a total period of not less thanfourteen days which may be comprised in one session or in twoor more successive sessions and if, before expiry of the sessions,in which it is so laid or the successive aforesaid the LegislativeAssembly agree in making any modification in the rule or theLegislative Assembly agree that the rule should not be made, therule shall thereafter have effect only in such modified from or beof no effect as the case may be, so, however, that any suchmodification or annulment shall be without prejudice to the validityof anything previously done under that rule.”

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“Rule 3A (1) - Every person responsible for making payment ofany person (hereinafter in this rule referred to as the contractor)for discharge of any liability on account of valuable considerationpayable for the transfer of property in goods (whether in goods orin any other form) in pursuance of the works contract shall at thetime of making such payment to the contractor either in cash or inany manner, deduct 1.5% of the gross amount of the bill towardstax payable in case of r.c.c bridge and 4% of the gross amount ofthe bill towards tax payable in respect of other works under section3A of the Act on account of such works contract:

Provided that no such deduction shall be made from the bill(s) orinvoice (s) of the contractor for execution of works contract onaccount of the contracts for which work order was issued prior tofirst January, 1989:

Provided also that any person responsible to make deduction ofany amount equal to the amount of tax as mentioned in this rulemay refer the matter to the Superintendent of Taxes, havingjurisdiction over the area, for provisional computation of the netturnover and the amount of tax payable thereof by such contractorfor the valuable consideration of the goods involved in the workscontract.

(2) Every person responsible for making payment to any personfor discharge of any liability on account of valuable considerationpayable for any transfer of the right to use any goods for anypurpose (whether or not for a specified period) for cash or in anymanner, shall at the time of making such payment, deduct anamount equal to four percentum of such towards part or as thecase may be, full satisfaction of the tax payable under the Act, onaccount of such transfer of right:

Provided no such deduction shall be made from the bill(s) orinvoice(s) of the transferrer - (a) on account of such transfer where the transfer of right to usegoods was agreed to before first day of January, 1989; (b) The amounts received as penalty for defaults in payment oras damages for any loss or damage caused to the goods by theperson to whom such transfer was made; and

(c) The amount representing the valuable consideration receivedfor such transfer in respect of goods exempt from tax under Sub-section (2) and (3) of Section 3 of the Act.”

8.2 In exercise of the powers under Section 44 of the TST Actthe State Government had enacted the TST Rules which were placedbefore the Legislative Assembly. On fair reading of Section 44 of theAct which is a rule making power it can be seen that the rule makingpower under Section 44 is inclusive and wide enough to cover theprocedure for recovery including tax deduction at source.

8.3 Section 3 of the TST Act can be said to be the charging Sectionand the liability to pay the tax shall be as per Section 3 of the TST Act.As per Section 3(1) of the TST Act every dealer in taxable goods shallpay a tax on his turnover at the rate specified in column (3) of theSchedule. As per the proviso to Section 3(1) as inserted by Tripura SalesTax (Fourth Amendment) Act, 1987 w.e.f. 12.05.1987 the rate of tax onany transfer of the right to use any goods for any purpose (whether ornot for a specified period) shall be 4%. The ‘Sale’ is defined underSection 2(g) and it means any transfer of property, in goods for cash ordeferred payment or other valuable considerations, and includes anytransfer of the right to use any goods for any purpose for cash, deferredpayment or other valuable consideration, and such delivery or transferof any goods shall be deemed to be a sale of those goods by the person A

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Amaking the delivery or transfer and purchase of those goods by theperson to whom such delivery or transfer is made. Thus, any transfer ofright to use any goods including the vehicles shall be deemed to be a‘sale’ as defined under Section 2(g)(ii). The word ‘Dealer’ has beendefined under Section 2(b) of the TST Act and it means any person whosales taxable goods. As observed hereinabove the sale of taxable goodsBshall be as per Section 2(g) of the TST Act. Therefore, on combinereading of Section 3 read with Section 2(b) & 2(g) of the TST Act anytransfer of the right to use any goods (including the vehicles) shall bedeemed to a ‘sale’ and the transferor of the right to use any goods/vehicles can be said to be a dealer and therefore liable to pay the tax atCthe rate of 4% on any transfer of the right to use any goods as perproviso to Section 3(1). Therefore, the liability to pay the tax at the rateof 4% on any transfer of right to use any goods shall be under Section3(1). Therefore, the submissions on behalf of the respondents – suppliers/transferers that as there is no sale or transfer of the goods and that theyare not registered with the TST Act and therefore, the liability to pay theDtax at 4% does not arise cannot be accepted. As observed hereinabovethe liability to pay the tax shall be on the transferer who transfers theright to use any goods as per proviso to Section 3(1) read with Section2(b) and 2(g) of the TST Act.

9. Now next question which is posed for consideration before thisECourt would be whether Rule 3A(2) of the TST Rules and thememorandum issued by the Government to deduct the tax at 4% and thebills to be paid to the transferers can be said to be ultra vires to TST Actis concerned, it appears that the High Court has held the said provisionas ultra vires by observing that there is no such provision for tax deductionFat source under the TST Act and therefore, the Rule cannot go beyondthe Act. The aforesaid view taken by the High Court is absolutelyfallacious. Rule 3A(2) can be said to be a recovery machinery/mechanism. What Rule 3A(2) provides is only for a machinery/mechanism where the person buying the goods is required to deduct thetax at source and deposits the same with the Revenue. It does not in anyGmanner change the chargeability of the tax or liability of the tax which isunder Section 3(1) of the TST Act read with Section 2(b) & 2(g) of theTST Act.

9.1 As observed hereinabove the rules are framed in exercise ofRule-making power under Section 44 of the Act and in that view of theH

matter and as the liability to pay the tax on transfer of right to use thegoods shall still be continued under proviso to Section 3(1), mere providingfor mode of recovery and/or providing for machinery/mechanism torecover the tax to be paid by the transferer/supplier from the personbuying the goods deducting the tax at source and depositing the samewith the Revenue cannot be said to be ultra vires to TST Act and theRules as observed and held by the High Court. At the cost of repetition,it is observed and held that Rule 3A(2) does not in any manner changethe chargeability of the tax or liability to pay the tax. Therefore, the HighCourt has fallen in error in misinterpreting Rule 3A(2) of the TST Rulesand has fallen in error in declaring Rule 3A(2) of the TST Rules ultravires to TST Act and the High Court has materially erred in quashingand setting aside the memorandum issued by the State Governmentrequiring the hirers namely the ONGC and the GAIL to deduct an amountequivalent to 4% out of the respective bills of the suppliers of the vehicles.

10. In view of the above and for the reasons stated above, presentappeals succeed. The impugned common judgment and order passed bythe Division Bench of the High Court and that of the common judgmentand order passed by the learned Single Judge declaring Rule 3A(2) ofthe Tripura Sales Tax Rules, 1976 as ultra vires to the Tripura Sales TaxAct, 1976 and quashing and setting aside the memorandum of 1992 issuedby the State Government requiring the hirers to deduct an amount of taxat 4% out of the respective bills of the suppliers of the vehicles arehereby quashed and set aside. Necessary consequences shall follow.

Present appeals are accordingly allowed. No costs.

Nidhi Jain

Appeals allowed.

(Assisted by : Abhishek Pratap Singh and Tamana, LCRAs)

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