The court ruled that tax authorities must refund excess tax collected, as retention violates constitutional provisions against unjust enrichment and discrimination.

JUDGMENT

Mr. Sanjeev Prakash Sharma, J.

These cases came up for hearing on an application moved by the petitioners for placing on record the replication. It is submitted that the issue involved in these cases stands finally adjudicated by Hon'ble the Supreme Court in Corporation Bank v. Saraswati Abharansala and another 2009 (1) SCC 540 and is covered.

2. Learned counsel for the respondents have fairly conceded that the issue taken up by the petitioners stands covered by the aforesaid judgment. In order to decide these cases, therefore, we would advert briefly to the facts as setup in CWP No.22260 of 2023.

3. Learned senior counsel appearing for the petitioner in CWP No. 22260 of 2023 has also filed written submissions. The petitioner company - Suncity Buildcon Private Limited and other petitioners are engaged in the business of developing residential and commercial projects and registered under the Haryana Value Added Tax Act, 2003 (hereinafter to be referred as "the Act of 2003") as a lump sum dealer. The Haryana Value Added Tax Rules, 2003 (for short, 'the VAT Rules') have been framed under the Act by the State Government and a lump sum scheme under Rule 49 of the VAT Rules has been formulated which is in accordance with the composition as per Section 9 of the Act of 2003. Accordingly, as per Rule 49 of the VAT Rules, a contractor once registered under the said Rules, is liable to pay tax @ 4% of the total value consideration received or receivable for execution of the contract.

4. Admittedly, the petitioners have been registered under Rule 49 of the VAT Rules and accordingly have been depositing tax @ 4% of its total turn over excluding the value of the land as a lump sum dealer.

5. The Government of Haryana introduced the Haryana Alternative Tax Compliance Scheme for Contractors, 2016 (hereinafter to be referred as "the Scheme") vide notification dated 12.09.2016 in order to expedite the tax, interest and penalty or other dues under the Act of 2003 for all contractors. As per Section 3 of the Scheme, the Scheme would be applicable to all contractors whether they have or they have not registered for lump sum scheme under Rule 49 of the VAT Rules. The Scheme was applicable upto 31.03.2014. It would be apposite to quote Clause 3 (1) and (2) of the Scheme which is relevant for the present purpose and reads as under:-

"3. Scope of Scheme

(1) This Scheme shall apply to all contractors, whether they have or have not opted for lump sum scheme under rule 49 of the Haryana Value Added Tax Rules, 2003.

(2) This Scheme shall apply irrespective of the fact that assessments are pending or have attained finality or assessment orders are pending before any authority under the Act or any court of law at the time of applying for the Scheme."

6. Clause 4 (1) and (2) of the Scheme lays down the computation of liability, which reads as under:-

Computation of liability

4. (1) A contractor opting under this Scheme shall pay year wise, in lieu of tax, interest or penalty arising from his business, by way of one time settlement, a lump sum amount at the rate of one percent of the entire aggregate amount, received/ receivable for the business carried out during the year, without deduction of any kind. Further, a surcharge at the rate of five percent shall be charged on the amount so payable:

Provided that where the contractor has charged and collected tax from the buyers in any particular year and it exceeds the amount payable under this Scheme, then the amount of actual tax charged and collected during the year shall be the amount payable for that particular year under this Scheme.

(2) No input tax credit on purchase of goods shall be admissible to the contractor under this Scheme. The liability under this Scheme shall also be irrespective of the liability of the sub-contractor under the Act. However, if the tax, interest or penalty already paid by him during the year covered under this Scheme exceeds the lump sum amount payable as per sub-clause (1) of