The petitioner is claiming refund of the amounts deducted as works contract tax, from the 1st respondent. The matter relates to execution of a works contract of laying of Optical Fibre Cable for the 3rd respondent. The work in question was awarded by the 3rd respondent to the 1st respondent. The 1st respondent in turn entered into a sub contract with the petitioner for execution of the work, on the basis that the payments of the work done would be made on a “back to back” basis, depending on the payments received from the 3rd respondent. It is stated that on completion of the work the 3rd respondent had effected payment of the final bill to the 1st respondent, after deducting the sales tax portion, as mandatorily required. It is stated that the deducted amount of tax was remitted by the 3rd respondent to the Sales Tax Department and certificate to that effect under Form No.21C of the KGST Act was issued to the 1st respondent. According to the petitioner an amount of Rs.4,79,964/- was deducted out of the final bill amount due to the petitioner. But the 1st respondent has not issued any certificate in Form No.21C to the petitioner under the KGST Rules. Therefore the petitioner was compelled to make payment of the tax, while completing the assessments with respect to years 2003- 2004 and 2004-2005. The petitioner had earlier approached this court in a writ petition. In Ext.P11 judgment this court directed the 1st respondent to consider the claim of the petitioner. Exhibit P12 is the reply issued by the 1st respondent, wherein it is mentioned that, the amount mentioned in the TDS certificate issued with respect to the work has already been remitted to the 1st respondent to the KGST Department as per the details furnished thereunder. The petitioner was advised to contact the Sales Tax office with the original TDS certificate and to get the credit of the tax already paid. The original of the TDS certificate was handed over to the petitioner. But the contention of the petitioner is that, they cannot claim refund of tax based on the TDS certificate because TDS certificate is issued in favour of the 1st respondent. Petitioner is claiming that the 1st respondent is bound to issue TDS certificate based on the deductions made. But it is pointed out that the 1st respondent is not a registered dealer and has not finalised the assessment of tax with respects to the works in question. Under such circumstances the petitioner seeking direction for refund of the tax amount deducted.
2. In the statement filed on behalf of the 1st respondent it is mentioned that, the TDS certificate issued by the 3rd respondent for an amount of Rs.3,09,789/- was already forwarded to the Sales Tax authorities stating that TDS has been deducted with respect to the value of the contract and the same has been deposited as per law. Therefore the contention is that sub contract given to the petitioner will not suffer any tax amount. That being the position, the 1st respondent cannot contend that the tax was liable to be paid by the petitioner. According to the 1st respondent the petitioner has got a remedy available to seek refund from the sales tax authorities and not from the 1st respondent. It is further stated that the transfer of properties involved in the execution of the work was from the 1st respondent to the 3rd respondent and hence the petitioner was not liable to suffer any tax as per the statute.
3. From the rival contentions it is evident that the 3rd respondent is the awarder of the work, who had deducted the tax, as required under the relevant provisions. It is also not in dispute that the 3rd respondent had deposited the tax amount before the taxation authorities. Question is as to whether the petitioner is entitled to get Form No.21-C Certificate from the 1st respondent with respect to such deduction and as to whether the petitioner is entitled to claim refund with respect to such deposit. The 1st respondent cannot issue Form No.21-C since the deduction was not made by them and since they are not the awarder of the work. Evidently the sub contract is based on the terms of 'back to back' payment. The liability fetched on the 1st respondent with respect to sales tax dues and the deductions made in that respect was passed on to the petitioner herein. Whether the 1st respondent was entitled pass on such liability or as to whether the 1st respondent is liable to make refund of the deductions to the petitioner, are not matters which can be adjudicated in this writ petition. Those aspects will depend upon the terms and conditions of the contract entered between the 1st respondent and the petitioner. Further, the question as to whether the petitioner can claim refund from the sales tax authorities on proving the sub contract and execution of the work, also does not germane for consideration in this writ petition, because the sales tax authorities are not made parties and no relief is claimed against them. Under such circumstances it will be left open to the petitioner to seek appropriate remedy either before the authorities of the Sales Tax Department or to get refund of the amount from the 1st respondent to the extent permissible under law. It is for the petitioner to take appropriate decision and to pursue appropriate remedy before the appropriate forum. Since the relief sought for in this writ petition cannot be granted, this writ petition is liable to be dismissed.
4. Therefore the writ petition is dismissed without prejudice to the rights of the petitioner to take appropriate steps as mentioned above.
AMG Sd/-
C.K. ABDUL REHIM JUDGE True copy P.A. to Judge