IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SALES TAX APPLICATION NO. 1 OF 2010 IN REFERENCE APPLICATION NO. 131 OF 2009 The Additional Commissioner of Sale Tax (VAT)-3, Mumbai. ... Applicant. V/s. M/s.Hindustan Construction Co.Ltd. ... Respondent. Ms.Imam Calcuttawala, AGP for the applicant- State. C.B.Thakar for the respondent. CORAM : V.C.DAGA AND K.K.TATED, JJ. DATED : 8th April 2010. P.C. : Perused reference application. Heard learned counsel for the rival parties. 2. This application for reference was admitted vide order dated 25th February, 2010 to consider the following substantial question of law: “Whether on the facts and in the circumstances of the case and on true and correct interpretation of the agreement, entered into between the respondent and BMC contractee for execution of works contract of water supply project, the Tribunal was justified in holding that the water charges and sewerage charges billed for, added to the contract price and later deducted without actually receiving the payment in lieu of water supply and sewerage facility provided by B.M.C. would not form part of the contract price for the purpose of levy of composition money under the Maharashtra Sales Tax on the Transfer of Property in Goods involved in the execution of Works Contract (Re-enacted) Act, 1989? 3. The factual matrix reflected in the under quoted paras is not in dispute. Admittedly, the Tribunal has rejected the prayer to make reference for the detailed reasons recorded in its judgment dated 7th September, 2009. The relevant part of the judgment is reproduced hereinbelow for immediate reference. “4. ..... Thus, as per the contract, the provision for water and sewerage was agreed to be made by BMC itself and the cost therefor was agreed to be borne by BMC. The cost to be charged and deducted in the appellant’s bills in this regard were determined by BMC at certain percentages with reference to the evaluated and accepted contract value (i.e. 6% in respect of water charges and 3% in respect of sewerage charges). This determination of cost on account of provision of water and sewerage seems to have been done for the BMC’s own Accounting purposes in respect of the particular water-supply project, which was funded by MMRDA. Thus, notwithstanding the actual expenses required to be borne by BMC for the provision of water and sewerage, the amounts at fixed percentages with reference to the evaluated contract price were added in the bills raised on BMC and were immediately deducted for the reason of such charges being neither received nor receivable by the appellant from BMC. It is on this backdrop the appellant urged that these amounts though charged in the bill, (but deducted thereafter), should not be considered as a part of the contract value for being assessed to be composition-tax u/s. 6A. The Fourth Bench accepted this contention mainly on the ground that on the particular facts, the said amounts being neither received nor receivable by the appellant under the contract, are not part of the taxable contract-value and hence are not liable to be composition-tax u/s. 6A. 8. From the facts of the case as emerging from the relevant terms of the contract and as narrated above, we have absolutely no doubt in our minds that the impugned water charges and sewerage charges are neither receivable nor received by the appellant. The provision for water and sewerage was contr5actually contemplated to be made by BMC and not by the appellant and hence the charges therefor are not reflected in the bid-price quoted by the appellant and accepted by BMC. There was no bargain whatsoever for determination of the said charges, which were unilaterally decided by BMC for its own Accounting purposes. On the facts, the said charges are clearly not receivable by the appellant as per the contract. Further, the said amounts are charged and in the same breathe are deducted in the Bills and hence they are factually not received by the appellant. In the course of hearing, we specifically asked the Departmental representative as to whether there is any evidence to raise slightest doubt as regards this factual position regarding the amounts being neither receivable nor received by the appellant as per the contract, then having regard to the specific and express provisions in Section 6A, no legal question can be said to have arisen from the impugned judgment to hold the said amounts to be not part of the contract-value liable to composition tax u/s. 6A.” (Emphasis supplied) 4. Reading of the aforesaid paragraphs, which are pregnant with the factual matrix, would unequivocally go to show that the Tribunal has considered the question sought to be raised threadbare and has come to the conclusion that taking overall view of the matter the question raised can hardly be said to be a question of law. On the contrary, question raised on the facts and circumstances of the case is nothing but a question of fact. 5. In the above view of the matter, it is not necessary to seek statement of fact. In the result, application is dismissed with no order as to costs. (K.K.TATED, J.) (V.C.DAGA J.)