Point of Law : Section 2(44) “sale price” means amount of valuable consideration paid or payable to a dealer for any sale made including any sum charged for anything done by dealer in respect of goods at time of or before delivery of goods other than cost of freight or delivery or cost of installation in cases where such cost is separately charged.

JUDGMENT :

Heard Dr. Ankit Todi, learned counsel for the petitioner. Also heard Mr. D. Saikia, Advocate General for the State, assisted by Mr. A. Chaliha, learned standing counsel for the Finance Department, representing respondent nos. 1 to 5 as well as Ms. G. Hazarika, learned standing counsel for the Central Excise & Service Tax Department, appearing for respondent nos. 6 to 9.

2. By this writ petition filed under Article 226 of the Constitution of India, the petitioner has assailed (i) the assessment order dated 10.08.2010 (Annexure-5) passed by the Deputy Commissioner of Taxes, Jorhat (respondent no.4), and (ii) the revisional order dated 18.02.2015 (Annexure-7) passed by the Additional Commissioner of Taxes, Assam (respondent no.3). The respondent authorities had considered paint consumed during restoration and reconditioning of vehicles at Authorised Service Station as transfer of property of paints and nature of works was considered as works contract in spite of the fact that on the same work, the Central Government was collecting service tax. Thus, the only issue which is required to be determined is whether Assam Value Added Tax (VAT for short) can be levied on paints by the Taxation Department of the State by treating the nature of works as works contract resulting in transfer of property in paints during the restoration and reconditioning work.

3. Referring to the statements made in the writ petition, the learned counsel for the petitioner has submitted that when damaged vehicles come into the workshop of the petitioner, the condition of the vehicle is inspected and if any denting and painting service is required to be provided for reconditioning and/or restoration of the damaged panels of vehicles, such repair work is carried out with the aid of expert labourers/painters. Accordingly, it is submitted that any painting and/or denting materials that are consumed in the process would fall within the realm of a contract of service. It is submitted that in ordinary sense as understood by a common man, no one would send a vehicle for denting and painting with a view to purchase paint and other denting and painting consumables and therefore, it is contended that such contract for service does not involve or result in a transfer of property in such goods. Thus, it is submitted that no tax can be levied under the Assam VAT Act.

4. By referring to the C.B.E.C. Circular No.699/15/2003-CX dated 05.03.2003 (Annexure-9), the learned counsel for the petitioner has submitted that on account of denting and painting services rendered by the petitioner, Service Tax is being paid since the year 2001 as per the Finance Act, 1994 on the gross receipt of the value for such work. Therefore, it is contended that if the petitioner is required to pay VAT on the same nature of work, it would amount to double incidence of tax by the State on the same component on which the Central Government is realizing Service Tax from the petitioner. It is submitted that several substantial questions of law as mentioned in para-32 of the writ petition arise for determination in this case. In support of his submissions, the learned counsel for the petitioner has placed reliance on the following cases, viz., S.S. Photographic Lab Pvt. Ltd. v. State of Assam & Ors., (2011) 3 NEJ 638, and (ii) Dainik Janambhumi v. State of Assam, (2003) 1 NEJ 1. It is also submitted that the decision of the Division Bench of this Court in the case of S.S. Photographic Lab Pvt. Ltd. (supra), was unsuccessfully assailed in Supreme Court of India and that as no appeal was preferred against the decision in the case of Dainik Janambhoomi (supra), the said judgment have attained finality and are binding on the respondent authorities.

5. Per contra, the learned Advocate General for the State respondent nos. 1 to 5 has referred to the definition of goods, sale, sale price and works contract as provided under Sections 2(20)(iii), 2(43)(i) and (ii), 2(44) and 2(57) of the Assam VAT Act and i