The transaction for de-siltation work did not involve a sale or transfer of right to use goods per the Assam Value Added Tax Act, 2003, making VAT imposition invalid.

JUDGMENT :

DEVASHIS BARUAH, J.

1. Heard Mr. BD Das, the learned senior counsel, assisted by Ms. J Gotha, the learned counsel appearing on behalf of the petitioners. I have also heard Mr. S Dutta, the learned Standing Counsel, Revenue and Disaster Management Department, Govt. of Assam, Mr. B Choudhury, the learned counsel, who represents the Agriculture Department, Mr. RK Talukdar, the learned counsel appearing on behalf of the Accountant General, (Audit/Accounts), Assam, Mr. G Bokolial the learned Junior Govt. Advocate, Assam who appears on behalf of the Deputy Commissioner, Dhubri and Mr. B Gogoi, the learned Additional Advocate General, Assam, who also represents the Finance Department, Govt. of Assam.

2. The grievance of the petitioners herein is the communication dated 08.08.2018 issued by the Additional Deputy Commissioner, Dhubri, thereby directing the Executive Engineer, Agriculture, Dhubri Division to realise VAT amount @ 5% from the bills of the petitioners and deposit the same through the Treasury Challan under the proper head of account and submit a report at an early date to meet the raised audit objection.

3. For appreciating the dispute, it is relevant to take note of that the Joint Secretary to the Government of Assam, Revenue and Disaster Management Department vide the communication dated 28.05.2015 to the Principal Accountant General, Assam conveyed the Administrative Approval of the Governor of Assam amounting to Rs.10 Crores for de-siltation work of 12,347.32 hectares of agricultural land, where silt were deposited due to flood in 2014, under 8(eight) numbers of districts as detailed out in the said communication.

4. The materials on record show that the Agricultural Department of the Government of Assam at the time of granting the Administrative Approval analysed the cost required for hire of tractors for 1(one) hectare of land and assessed that the cost involved would be Rs.8,100/- per hectare.

5. The record further reveals that the Executive Engineer, Agriculture, Dhubri Division, issued a Short Notice Inviting Quotation inviting owners of tractors, registered under the Central Motor Vehicles Act, 1988 (for short, the Act of 1988) for de-siltation work by tractorization in agricultural lands, affected by siltation in various locations. It was mentioned that the Administrative Approval was received from the Government of Assam, Revenue and Disaster Management Department, but the payment would be released to the owners, only after satisfactory completion of the works and subject to release of funds by the Government of Assam.

6. The criteria which was stipulated in the said Short Notice Inviting Quotation were that the bidders must be owner of the tractor registered under the Act of 1988; should possess valid registration certificate; should have up-to-date insurance coverage; should possess pollution certificate(where necessary); should possess PAN card; and the drivers of the vehicles should have up-to-date driving licence for tractors under the Act of 1988 and the rules framed thereinunder.

7. The Short Notice Inviting Quotation, however did not detail out as to how the work was to be carried out as well as to who shall have the control over the tractors while carrying out the work in question. Pursuant thereto, the petitioners herein were issued various Work Orders. Taking into account its relevance, one of such Work Orders, which is a part of Annexure-4 series is reproduced hereinunder:

“OFFICE OF THE EXECUTIVE ENGINEER (AGRICULTURE) DHUBRI DIVISION GAURIPUR

No.EE/Agri/GRP/SDRF/T-213/2015-16/1055

Date:10/12/15

From:

Sri B K Nath,

EE (Agri) Dhubri Div