IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No.12223 of 2008 Date of decision: 12.11.2008 Freedom Info Systems. -----Petitioner Vs. Bharat Sanchar Nigam Limited and others. -----Respondents CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON'BLE MR JUSTICE L.N. MITTAL Present:- Mr. Raman Sharma, Advocate for the petitioner. Mr. Anil Rathee, Advocate for respondent No.1-BSNL. Mr. Piyush Kant Jain, Addl.A.G., Punjab. for respondents No.2 and 3. ----- ORDER: 1. This petition seeks a declaration that provisions of Section 27 of the Punjab Value Added Tax Act, 2005 (for short, “the Act”) are void in absence of any mechanism to exclude a transaction, which is not exigible to sales tax and to direct the respondents to stop deduction of sales tax @ 2% from the labour bills of the petitioner-firm and to refund the amount so deducted. 2. Case of the petitioner is that it was awarded a contract for performing jobs of Bharat Sanchar Nigam Limited, C.W.P. No.12223 of 2008 which in substance related to data entry, apart from certain other jobs. Job description of the contract is as under:- Sr. No. Description Rates inclusive of all taxes 1. Reconcilation of remittance in bank Rs.1.40 per cheque/draft I. II. III. - Data feeding of cheques & drafts - Preparation and printing of remittance challan in triplicate - Affixing of rubber stamps on each copy of remittance challan & cheques. IV Tearing of challan in two parts & stitching of cheques/drafts V Posting of cheques, cheques dishonour and reconciliation VI Printing of cleared items VII Printing of unlinked items VIII Printing of schedule of remittance to bank 2. Reconciliation of drawing from bank 0-01 per entry The work comprises of following stages: I The feeding of cheques II Printing of schedule III Posting of date of clearance of cheques, dishonour of cheques IV Reconciliation of drawing from bank V Printing of cleared items Vi Printing of unlinked items 2 C.W.P. No.12223 of 2008 3. Date feeding and reconciliation of trial balance 0-01 per entry The work comprises of following stages: I II III - Data feeding of entries collection cash book - Data feeding of entries collection bank book - Reconciliation with collection bank cheque IV Taking out of print of balance/sheet current (receipt side) B The work includes of following stages of operation: 0-01 per entry I II III - Data feeding of entries collection cash book - Data feeding of entries collection bank book - Reconciliation with collection bank cheque IV Taking out of print of balance/sheet C Detail of printing trail balance I - Detail of print of J/Slip - Reconciliation of J/Slip - Printing trail balance - Printing sub ledger - Print of Ledger 4. Other computerized items Rs.2/- per entry 5. Data feeding of change in various component of salary like basic pay, DA, HRA, CCA etc. and recovery items like GPF (C), CPF and advance etc. 0.01 paise per entry 3 C.W.P. No.12223 of 2008 6. Taking out of print of balance/sheet current (receipt side) 0-01 per set The work referred includes a) GPF (C) and Refund class IV b) GPF (C) and Refund other than class IV c) Loan and Advances d) HRR e) PLI f) Society dues g) Welfare 7. Printing of pay vouchers/A Roll/Pay slip 0-01 per set 8. Printing of Rent bill/MO list 0-01 per set 9. Data feeding of rent bill/MO list 0-01 per set 10. Data feeding of Medical & OTA 0-01 per set 1 Data entry of medical & OTA 2 Printing of voucher medical & OTA 3 Printing of A roll Medical & OTA 11. Feeding of travels allowance 0-01 per set 1.Data entry 2. Printing of voucher 3.Printing of A ROLL 12 Printing of GPF (widrawal) sanctioning & maintenance of employees wise records 0-01 per set 13 Despatch of refund cheques & building rent cheques 0-01 per cheque” 3. It has been submitted that since in execution of above job/contract, no transfer of goods or sale of goods is involved, no 4 C.W.P. No.12223 of 2008 tax was attracted. Reference was made to Section 6 of the Act, which is the charging section. Gross turnover is defined in Section 2(m) of the Act, to include aggregate of the amounts of sales/purchase. It is submitted that before Section 6 of the Act is attracted, there has to be some sale or purchase. In the present case, it is not the case of the respondents that any sale or purchase is involved in executing the contract in question. Reliance has also been placed on a Single Bench judgment of this Court in M/s Keshob Plants v. BSNL C.W.P. No.19579 of 2002 decided on 13.8.2008, holding that if in a works contract, no sale of goods was involved, no sales tax could be allowed to be collected merely on the ground that the same could be refunded later. 4. Only plea of respondent No.1 is that as per contract entered into between the petitioner and the respondent No.1, respondent No.1 is entitled to make deductions of 2% of the payment to be made to the petitioner under Section 27 of the Act. Section 27 of the Act envisages deduction only where payment is made in a contract for transfer of property or goods in pursuance of work contract, which admittedly, is not the situation here. 5. In view of admitted facts, we are of the view that respondent No.1 cannot make any deduction from the payments to be made to the petitioner. No tax can be collected merely because of agreement between the parties, in absence of tax being leviable under a statutory provision. Judgment relied upon 5 C.W.P. No.12223 of 2008 on behalf of the petitioner is clearly applicable and supports the case of the petitioner. 6. Learned counsel for the State of Punjab points out that under sub-Section (10) of Section 27 of the Act, in case of any dispute, an application can be made by the contractor for issuance of a certificate that no tax was liable to be deducted. In view of admitted facts in the present case, it is not necessary to require the petitioner to resort to the said remedy, which of course is an alternative remedy which the petitioner could have resorted to. 7. Accordingly, we declare that respondent No.1 is not entitled to make any deduction out of the payments to be made to the petitioner under Section 27 of the Act without any transfer of property in goods being involved. 8. The petitioner will be at liberty to take its remedies for refund of the payments already made. If any such application is made, respondent No.3 will take a decision thereon within one month from the date of receipt thereof. 9. The petition is disposed of accordingly. ( ADARSH KUMAR GOEL ) JUDGE November 12, 2008 ( L. N. MITTAL ) ashwani JUDGE 6