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Judgment
Vineet Kothari, J.—The petitioner, Contractor Association (Civil) Rajasthan Rajya Vidyut Mandal, Jodhpur, has filed this writ petition to espouse the common cause of its members against the respondent--Rajasthan Rajya Vidyut Prasaran Nigam Ltd. (''Nigam'' for short) inter alia challenging the impugned action of the respondent Nigam of deducting 50 per cent of the service-tax imposed under the provisions of the Finance Act, 1994, as amended from time to time, from the running/final bills of members of the petitioner association, namely, the various individual contractors, who executed the works contracts of raising civil construction for the respondent Nigam. By consent of learned counsel, the matter was heard finally at the admission stage itself.
Mr. Dinesh Mehta, learned counsel for the petitioner association, mainly raised the following contentions:
(i) that under cl. 36C of the general conditions of the contract, which is quoted below, the respondent Nigam-awarder of the contract, was liable to pay the service-tax in question as only the royalty or other tax on materials was required to be paid by the contractor:
Clause 36C: Royalty or other tax on materials, issued in the process of fulfilling contract, payable to the Government under rules in force, will be paid by the contractor himself.
(ii) that w.e.f. 1st July, 2007 the works contract services were included within the definition of taxable services under s. 65(105)(zzzza) and in pursuance of the Notification No. 30 of 2012, dt. 20th June, 2012 [(2012) 250 CTR (St) 216 : (2012) 73 DTR (St) 53--Ed.] issued under s. 68(2) of the Finance Act, 1994, the Central Government provided the percentage of tax payable by the persons providing services and persons receiving the services. In the said Notification No. 30 of 2012 dt. 20th June, 2012, the Central Government has provided that both, the person providing the service and person receiving the service in relation to works contract shall be liable to pay 50 per cent of the service-tax payable.
The contention is that the respondent Nigam is not entitled to deduct any portion of the service-tax of 50 per cent of the total service-tax liability from the payment of bills for work done by the contractors, the members of the petitioner association, in respect of the contract executed prior to 1st July, 2012. He submitted that there is no quarrel that after 1st July, 2012 the liability to pay entire service-tax under the contract has been affixed on the contractor by making specific stipulations in the tender documents only, but prior to 1st July, 2012, for such works contracts executed by the respondent Nigam in favour of the contractors, no such specific liability to pay the entire service-tax was fixed on the contractors and, therefore, such deduction of service-tax from the bills is illegal.
He, though, admitted that the bills were being raised for the gross amount inclusive of service-tax liability of 12 per cent leviable under s. 66B of the Act and service-tax was not separately charged or shown in the bills raised by the contractors. Sec. 67(2) of the Act also clearly so stipulates and thus gross amount of bill would be deemed to be inclusive of service-tax component.
(iii) that the respondent Nigam in its meeting dt. 10th Nov., 2005 vide Annex. 2, the Committee comprising of CMD, director (F & CA) and director (technical) had taken a decision to reimburse the amount of service-tax to the contractors, and such service-tax on works contract, which was introduced in the first instance w.e.f. 1st July, 2007 was being reimbursed by the respondent Nigam to the contractors but suddenly after 1st July, 2007, the respondent Nigam has deducted 50 per cent of the total service-tax liability, which was stated to be 12 per cent, from the running bills of the contractors and such action of the respondent Nigam is illegal and, therefore, writs of prohibition and mandamus deserve to be issued to the respondent Nigam.
(iv) that the impugned action of deduction of 50 per cent of service-tax is being taken by the respondent RRVPNL in pursuance of communication Annex. 8 dt. 6th July, 2012 of the Chief Controller of Accounts of RRVPNL, who after issuance of Notification No. 30 of 2012, dt. 20th June, 2012, in consultation with the tax consultants has asked the concerned authorities to comply with these provisions and take necessary action in this regard viz., obtaining registration with Central Excise Department, etc.
On the other hand, Mr. R.K. Agrawal, learned senior advocate assisted by Mr. Manoj Bhandari appearing for the respondent Nigam raised the following preliminary objections as to the maintainability of the present writ petition:
(i) that the petitioner association cannot espouse the cause of individual contractors, who are individually liable to be registered under the provisions of the Finance Act, 1994 for discharging their liability to pay service-tax with the Central Excise Department and the contract terms of each contract is a matter of individual contract and, therefore, no such common cause arises in the matter so as to be adjudicated in the present writ petition.
(ii) that several disputed questions of facts are involved in the present case as to the date of contract, nature of payments to the contractors, nature of bills raised by the contractors, whether the component of service-tax is included in the bills or charged separately, whether the respondent Nigam is liable to pay or reimburse the amount of service-tax to the contractors or not, are all individual questions of facts to be decided on the basis of relevant evidence by the concerned authorities of the Department and, therefore, no writ petition can be maintained by the petitioner association in this regard.
(iii) that admittedly, an arbitration clause exists in each contract and, therefore, dispute, if any, in this regard can be raised before the arbitrator and in view of such alternative remedy available to the petitioner association or its members, the present writ petition is not maintainable under Art. 226 of the Constitution of India.
(iv) that under the ''reverse charge mechanism of service-tax'' introduced by the respondent Nigam in pursuance of the amendment in law w.e.f. 1st July, 2012, the respondent Nigam was entitled to deduct the 50 per cent of service-tax liability, which was included in the gross amount of the bills of the contractors as the service-tax liability was shifted on the service receiver i.e., Nigam under the Notification No. 30 of 2012-ST, dt. 20th June, 2012 to avoid the non-payment of service-tax by individual contractors the Government bodies like the respondent Nigam, which could be held to be more responsible and accountable for payment of such public revenue, the concept of "reverse charge mechanism" was introduced by the Central Government and such liability is being discharged by the respondent Nigam and it has got registered with the Central Excise Department after 1st July, 2012 and consequently there is no ground to challenge such deduction of 50 per cent of service-tax from the bills by the contractors, much less the petitioner association and no sufficient materials and documents are available on record of this Court to decide these academic and hypothetical questions only.
On the merits of the writ petition, without prejudice to the preliminary objections raised by him, Mr. R.K. Agarwal, senior advocate also urged that the liability to pay the service-tax is admittedly on the service provider i.e., the contractors under s. 68(1) of the Act and under s. 68(2) of the Act in case of individual contractors except body corporates, who are liable to regular audit and compliance with the various provisions of the Companies Act and other relevant statutes, such liability to pay 50 per cent of the service-tax has been shifted to the respondent Nigam and other body corporates, who are awarders of such contracts and with this change in law, in the absence of any terms in the contract itself, the respondent Nigam is perfectly justified in deducting 50 per cent of the service-tax at source while making payment of the bills to the contractors and depositing the same in public exchequer and no challenge can be made to the same. Learned counsel Mr. R.K. Agarwal relied on the decision of Supreme Court in the case of All India Federation of Tax Practitioners and Others Vs. Union of India (UOI) and Others, and decision of Andhra Pradesh High Court in the case of Bhagyanagar Contractors Welfare Association Vs. The Managing Director M.W.S. and Sewerage Board and Others, which would be referred hereinafter.
No case law was relied upon by the learned counsel for the petitioner association, Mr. Dinesh Mehta in support of his contentions.
I have heard the learned counsel for the parties at length and perused the record and relevant statutes and given my thoughtful consideration to the rival submissions.
Sec. 68 of the Finance Act, 1994 as substituted by Finance Act of 1998 w.e.f. 16th Oct., 1998 reads as under:
Payment of service-tax.--(1) Every person providing taxable service to any person shall pay service-tax at the rate specified in s. 66 in such manner and within such period as may be prescribed.
(2) Notwithstanding anything contained in sub-s. (1), in respect of any taxable service notified by the Central Government in the Official Gazette, the service-tax thereon shall be paid by such person and in such manner as may be prescribed at the rate specified in s. 66 and all the provisions of this chapter shall apply to such person as if he is the person liable for paying the service-tax in relation to such service.
Sec. 65(105) of the Act defines taxable service and cl. (zzzza) thereof, which includes works contract service within the ambit and scope of taxable service is also reproduced hereunder for ready reference:
(105) ''taxable service'' means any service provided or to be provided,
.........
(zzzza) to any person, by any other person in relation to the execution of a works contract, excluding works contract in respect of roads, airports, railways, transport terminals, bridges, tunnels and dams.
Explanation.--For the purposes of this sub-clause, ''works contract'' means a contract wherein,--
(i) transfer of property in goods involved in the execution of such contract is leviable to tax as sale of goods, and
(ii) such contract is for the purpose of carrying out,--
(a) erection, commissioning or installation of plant, machinery, equipment or structures, whether pre-fabricated or otherwise, installation of electrical and electronic devices, plumbing, drain laying or other installations for transport of fluids, heating, ventilation or air-conditioning including related pipe work, duct work and sheet metal work, thermal insulation, sound insulation, fire proofing or water proofing, lift and escalator, fire escape staircase or elevators; or
(b) construction of a new building or a civil structure or a part thereof, or of a pipeline or conduit primarily for the purposes of commerce or industry; or
(c) construction of a new residential complex or a part thereof; or
(d) completion and finishing services, repair, alteration, renovation or restoration of, or similar services, in relation to (b) and (c), or
(e) turnkey projects including engineering, procurement and construction or commissioning (EPC) projects;
Sec. 66B inserted w.e.f. 1st July, 2012 which provides for rate of tax @ 12 per cent is also quoted below for ready reference:
66B. Charge of service-tax on and after Finance Act, 2012.--There shall be levied a tax (hereinafter referred to as the service-tax) at the rate of twelve per cent on the value of all services, other than those services specified in the negative list, provided or agreed to be provided in the taxable territory by one person to another and collected in such manner as may be prescribed.
The relevant extract of the Notification No. 30 of 2012, dt. 20th June, 2012 insofar as it is applicable to the present case and relevant column headings are also reproduced hereunder for ready reference:
Government of India
Ministry of Finance
(Department of Revenue)
Notification No. 30 of 2012-Service-tax
New Delhi, the 20th June, 2012
GSR......(E).--In exercise of the powers conferred by sub-s. (2) of s. 68 of the Finance Act, 1994 (32 of 1994), and in supersession of (i) notification of the Government of India in the Ministry of Finance (Department of Revenue), No. 15 of 2012--ST, dt. the 17th March, 2012, published in the Gazette of India, Extraordinary, Part II, s. 3, sub-s. (i), vide No. G.S.R. 213(E), dt. the 17th March, 2012, and (ii) notification of the Government of India in the Ministry of Finance (Department of Revenue), No. 36 of 2004--ST, dt. the 31st Dec., 2004, published in the Gazette of India, Extraordinary, Part II, s. 3, sub-s. (i), vide No. G.S.R. 849(E), dt. the 31st Dec., 2004, except as respects things done or omitted to be done before such supersession, the Central Government hereby notifies the following taxable services and the extent of service-tax payable thereon by the person liable to pay service-tax for the purposes of the said sub-section, namely:
At the outset, this Court is of the opinion that the present writ petition filed by the petitioner association is not maintainable and is not even properly constituted so as to be entertained in the extraordinary jurisdiction of this Court under Art. 226 of the Constitution of India. There are more than a couple of reasons for saying so.
Not only several disputed questions of facts are involved in the present writ petition, since contracts for each contractor, members of the petitioner association, whose details are not even produced with the writ petition, is a matter of terms and conditions of the contract in each case and whether the liability to pay the service-tax as per the terms of contract is on the contractor or on the awarder of the contract would depend upon that but the questions sought to be raised in the present writ petition by the petitioner association also appear to be mere academic and hypothetical and no factual foundations have been laid in the present writ petition for deciding the same. Therefore, the locus standi to file the writ petition by the petitioner association in such matter of levy of tax and sharing of liability to pay or bear such liability of service-tax depending upon the interpretation of statute, which has to be necessarily read in the light of contractual terms as to who will bear the liability, whether it is reimbursable by the awarder of the contract or not, whether it is included in the gross value of bill or is separately charged in bills etc., are the questions which can be adjudicated in the individual assessment to be undertaken by the competent assessing authority of the Central Excise Department, who implement the provisions of levy of service-tax, initially introduced by Finance Act, 1994 and as amended from time to time.
Learned counsel for the respondent, Mr. R.K. Agarwal also rightly pointed out that in view of arbitration clause available in the contract, in case of a dispute between the parties to the contract as to who will bear the liability of paying service-tax and to what extent, such a dispute, first deserves to be raised before the arbitrator under the said contract or in the alternative before the assessing authority under the Act and such questions without any material on record in this regard, merely by some illustrative examples of bills of one of the contractors on a piece of paper, a photocopy of one of the bills of one such contractor, like the one produced by the petitioner association, such academic questions cannot be determined by this Court much less in writ jurisdiction under Art. 226 of the Constitution of India.
The sheet anchor and foundation of the case in hand of the petitioner association that under cl. 36C of the general conditions of contract, the petitioner association cannot be asked to pay the service-tax is absolutely misconceived. The said cl. 36C apparently stipulates that the royalty and other taxes payable to the Government under the rules in force will be paid by the contractor himself. The other document relied upon by the learned counsel for the petitioner, namely, the so-called decision taken by the Committee vide Annex. 2 dt. 10th Nov., 2005 that service-tax would be reimbursed to the contractors by the Nigam is also a misconceived contention for two reasons. Firstly, the heading of the minutes of the said Committee shows that it was "for consideration of WTD''S (full form not even known to either of the counsel) regarding applicability of service-tax on labour contracts for construction of transmission lines". Admittedly, the contracts in question are civil contracts for buildings etc. for respondent Nigam and not the labour contracts for construction of transmission lines, therefore, such resolutions are not even applicable to the contractor members of the petitioner association. Secondly, the resolution is dt. 10th Nov., 2005, whereas service-tax for works contracts became applicable w.e.f. 1st July, 2007 relied upon by the learned counsel for the petitioner, Mr. Dinesh Mehta, which is extracted below, further clarifies that the same is not applicable to the members of the petitioner association at all but was only for the service-tax relating to particular tenders in question Nos. TN-3558 and TN-3546.
The Committee discussed the case. After deliberation Committee decided the following:
(i) For the contracts awarded prior to the date of applicability of service-tax, the service-tax may be paid on the balance work/services executed after application of service-tax and which were within completion schedule, if demanded by the contractor and after obtaining proof of having deposited the service-tax by the contractor to the Government exchequer. Any penalty, etc. on the service-tax will be to the contractor''s account.
(ii) For the contracts awarded after applicability of service-tax under TN-3558 and TN-3546 the service-tax may be paid if demanded by the contractors and after obtaining proof of having deposited the service-tax by the contractor to the Government exchequer. Any penalty, etc. will be to the contractor''s account.
Therefore, said resolution dt. 10th Nov., 2005 is of no avail to the petitioner association or its members, so as to amount to the novation of their contracts or addition of this term in the contract in question executed prior to 1st July, 2007 or 1st July, 2012 for that matter so as to give any foundation to the petitioner that the respondent Nigam would reimburse the service-tax liability to the members of the petitioner association. The said resolution is hedged with the condition of proof of deposit of the same in Government Treasury, but no such proof has been placed on record by the petitioner association.
The Notification No. 30 of 2012, dt. 20th June, 2012 (Annex. 5 on record) vide its cl. 1(v) further provides that the taxable service provided or agreed to be provided in execution of works contract by any individual, HUFs or partnership firms, whether registered or not, including AoP, located in the taxable territory to a business entity registered as body corporate, located in the taxable territory will only be covered by said notification. Therefore, if a limited company is a service provider, the said notification will not apply and on the other hand, if the awarder of the contract is not a body corporate, again the said notification will not apply. In the present case, one does not know, whether all the members of the petitioner association are individual contractors. HUFs or partnership firms or are body corporates. In the absence of said material on record, the very foundation of applicability of the said notification falls on the ground and cannot be decided in the present case. The entire dispute raised by the petitioner association that the liability to pay service-tax to the extent of 50 per cent has been fixed on the service receiver, namely, the Nigam, therefore, the respondent Nigam should bear the 50 per cent of the tax liability on its own and cannot deduct the same from the bills of the contractors depends upon the terms of contract itself, but since no material has been placed on record in this regard, therefore, this Court cannot be expected to decide such academic and hypothetical questions, which essentially depend upon the intricate terms of the contract. The interpretation of statutes would be a hollow exercise, unless any such adjudication at the hands of Department has taken place.
Prima facie, since s. 68(1) of the Act affixed the liability to pay the service-tax on a person providing the taxable service, the liability to pay such tax would be on the contractors and the Notification No. 30 of 2012, dt. 20th June, 2012 dividing the liability to pay such service-tax to the extent of 50 per cent by both service providers and service receivers, which is issued under s. 68(2) of the Act, quoted above, will not absolutely absolve the petitioner contractors from their liability to bear the entire service-tax liability. Learned counsel for the petitioner himself conceded that the contractors have been raising their bills inclusive of service-tax without separately charging the same or showing them separately in the bills. Why it is being so done is anybody''s guess. Sec. 67(2) of the Act provides for such inclusion of tax in the gross amount. If they are including full service-tax in their bills, the respondent Nigam would be justified in deducting 50 per cent of full service-tax liability @ 12 per cent and paying the same in State Treasury and if service-tax was being separately charged and being reimbursed, for which there is not even a shred of evidence on record, and, therefore, it is only assumptive, then the question of deduction would not have arisen, as the contractors after 1st July, 2012 would have charged only 50 per cent of the service-tax liability of 12 per cent and claimed its reimbursement. The said provision vide Notification No. 30 of 2012 has been introduced with an object to prevent the pilferage of service-tax collected by the contractors and reimbursed to them by the awarders of the contract, which ultimately did not reach the public exchequer. Therefore, to ensure the flow of tax revenue to the extent of 50 per cent from the side of awarders of the contract, like the respondent Nigam and other body corporates, such a provision appears to have been introduced and then to realize the payment of remaining 50 per cent of service-tax from the contractors tracking them through such details provided by Nigam, who could otherwise simply escape the tax net in the absence of even prior registration and returns filed by such individual contractors. This provision appears to be there to plug the loopholes and check the pilferages of public revenue and the same cannot be faulted and questioned, much less by the petitioner association, whose locus to file the writ petition is in serious doubt.
The contention of learned counsel for the petitioner association, Mr. Dinesh Mehta, based on Chief Controller of Accounts, letter Annex. 8 dt. 6th July, 2012 is also equally devoid of merit. The same is merely an intra-Departmental communication asking the authorities to comply with the provisions of law in view of change in legal position w.e.f. 20th June 2012 upon which RRVPNL obtained legal opinion from its tax consultant and circulated it to these authorities for needful compliance. The said communication nowhere asks these authorities to deduct 50 per cent of service-tax from the bills of the contracts. The said communication cannot furnish any cause of action to the petitioner contractors, much less to the association of contractors. This contention of petitioner shows confusion of it worse confounded. On the one hand, petitioner says in para (iv) of the grounds of writ petition on p. 18 of the writ petition that "while keeping its right reserved to challenge the recovery of service-tax for the contracts given after July, 2012", it says in para (iii) on p. 16 "that only reason given by the respondents for changing their stand or the justification for the impugned illegal deductions from the running bills is the letter dt. 6th July, 2012 issued by the Chief Controller of Accounts". There is no explanation on the side of petitioner to explain the said incongruity. The letter dt. 6th July, 2012 only explains the legal position after 1st July, 2012.
The Andhra Pradesh High Court in Bhagyanagar Contractors Welfare Association vs. Managing Director, M.W.S. & Sewerage Board & Ors. (supra), therefore, respectfully rightly held that such writ petitions are not maintainable. The relevant paras 10 and 11 of the said judgment are quoted below for ready reference:
In Assistant Excise Commissioner and Others Vs. Issac Peter and Others, the Supreme Court held:
In case of contracts freely entered into with the State, like the present ones, there is no room for invoking the doctrine of fairness and reasonableness against one party to the contract (State), for the purpose of altering or adding to the terms and conditions of the contract, merely because it happens to be the State. In such cases, the mutual rights and liabilities of the parties are governed by the terms of the contracts (which may be statutory in some cases) and the laws relating to contracts.
If there is any breach of the terms or dispute as to the interpretation of a covenant of the contract, appropriate remedy is not by way of a writ petition. It is only by way of a common law remedy for breach of a contract or interpretation of a clause. However, if there is arbitration clause, in the agreement, either party can avail the remedy of arbitration/conciliation.
Similarly, the Hon''ble apex Court in All India Federation of Tax Practitioners & Ors. vs. Union of India & Ors. (supra) explained the concept of ''service-tax'' and its difference from the tax levied on the goods and held as under:
Service-tax is a value added tax. Value addition is on account of the activity like planning, consultation, advising etc. It is an activity, which provides value addition as in the case of manufacturer of goods, which attracts service-tax. In the present case, tax falls on the activity which is the subject-matter of service-tax. Service-tax is on profession based services itself. It is on professional advice, tax planning, auditing, costing, etc. Tax becomes payable on each of the exercises undertaken. The word ''service'' in place of ''goods'' by applying the principle of equivalence. Under the Act, the taxable event is each exercise undertaken by the service-provider in giving advice on tax planning, auditing, costing etc. It is the said principle of equivalence which equates ''service-tax'' to the Central excise duty, one taxes the provision of services and other production of goods.
For each contract, tax is levied under the Finance Acts, 1994 and 1998. Tax cannot be levied under that Act without service being provided whereas a professional tax under Entry 60 is a tax on his status. It is the tax on the status of a cost accountant or a chartered accountant. As long as a person/firm remains in the profession, he/it has to pay professional tax. A chartered accountant or a cost accountant obtains a licence or a privilege from the competent body to practise. The State is competent to levy a tax under Entry 60 on that privilege as such. That tax has nothing to do with the commercial activities which he undertakes for his client. Even if the chartered accountant has no work throughout the accounting year, still he has to pay professional tax. He has to pay the tax till he remains in the profession. This is the ambit and scope of Entry 60, List II which is a taxing entry. Therefore, Entry 60 contemplates tax on professions, as such. Entry 60, List II refers to ''tax on employments''.
Thus, the taxable event is the providing of service, which in the present case would be point of time of execution of works contract itself, which is prior to 1st July, 2012. Mere payment of such bills for work already done after 1st July, 2012 would not alter the applicability of law as applicable to the petitioner contractors prior to 1st July, 2012. For this reason also the action of respondent-Nigam cannot be challenged by the petitioner association on the basis of change of legal position after 1st July, 2012.
In view of aforesaid legal position and factual background, this Court is of the considered opinion that present writ petition filed by the petitioner association is devoid of merit and on the preliminary objections raised by the respondent Nigam, same deserves to be dismissed. On merits also, this Court finds no ground to decide the academic questions raised in the writ petition even of interpretation of provisions of law and notification, since such questions are merely academic and hypothetical questions and no proper factual foundation or relevant evidence is available on record to decide such questions, which are essentially the questions of facts based on terms of the contract. The individual contractor can very well raise these questions either before the assessing authority, who implements these provisions of service-tax of Central Excise Department and if they have lis against the respondent Nigam, the arbitration clause in the contract can take care of such disputes. Accordingly, the writ petition is liable to be dismissed and same is hereby dismissed. No costs.