Shamsul Islam Barlaskar vs. The State Of Assam And 5 Ors

Held

The Court acknowledged the uncertainty faced by the petitioner regarding the applicable tax regime for the work performed after the introduction of GST. The Taxation Department confirmed that this issue was pending decision by the authorities. Considering that the matter involves public interest and the petitioner's inability to pay taxes due to this ambiguity, the Court decided that it would be in the best interest of public service to direct the Commissioner of Tax, Assam, to take a definitive decision. The Commissioner was instructed to determine whether the AVAT Act, 2005, or the AGST Act, 2017, would apply to the work period after the GST regime's advent. The Court directed this decision to be made within one month from the date of the order. Until such a decision is taken, no coercive action is to be initiated against the petitioner for non-payment of tax. The petitioner is to be governed by the decision once it is made, unless they choose to challenge it.

Facts

The petitioner, Shamsul Islam Barlaskar, participated in a tender process initiated on February 13, 2014, for anti-erosion measures in specific areas of Assam. The work was to be completed within 90 days of the work order. However, the work continued beyond the stipulated period. At the time of the work order, the applicable tax regime was the Assam Value Added Tax Act, 2005 (AVAT Act, 2005). During the currency of the work, the Assam Goods and Services Tax Act, 2017 (AGST Act, 2017) came into effect. This created uncertainty for the petitioner regarding which tax regime to follow for the period the work extended into the GST regime.

Key Issues

1. Whether the petitioner, for the period of work conducted after the advent of the Goods and Services Tax (GST) regime, is liable to pay tax under the Assam Value Added Tax Act, 2005, or the Assam Goods and Services Tax Act, 2017? The petitioner argued that there is uncertainty regarding the applicable tax regime for the work performed after the introduction of GST. The revenue, represented by the Taxation Department, stated that the issue had not yet been decided by the authorities. The petitioner contended that this uncertainty prevents them from paying the required taxes, potentially leading to a situation where public interest suffers due to non-compliance.