Azaharuddin Ahmed Vs. T. N. T. others Board and Others

Azaharuddin Ahmed

Vs.

T. N. T. others Board and Others

Supreme Court

Appellate Division

(Civil)

Present:   

Mohammad Fazlul Karim J

Md. Joynul Abedin J

Md. Hassan Ameen J

Azaharuddin Ahmed ………………………Petitioner

Vs.

T. N. T. others Board and Others……………..Respondents

Judgment

October 2, 2007.

Lawyers Involved:

A. B. M. Bayezid, Advocate, instructed by Syed Mahbubar Rahman, Advocate-on-Record-For the Petitioner.

Not repre­sented- the Respondents.

Civil Petition for Leave to Appeal No. 244 of 2006

(From the judgment and order dated the 6th and 7th July, 2004 passed by the High Court Division in Writ Petition No. 3601 of 1996)

Judgment

               Mohammad Fazlul Karim J. –This peti­tion for Leave to Appeal at the instance of the petitioner is directed against the judg­ment and order dated 07.07.2004 passed by the High Court Division in Writ peti­tion No. 3601 of 1996 discharging the Rule with a cost of Tk. 5,000.00.

2. The petitioner is a subscriber of tele­phone provided by respondent No.1, Bangladesh Telegraph and Telephone Board (BTTB). The only grievance agitat­ed by the petitioner in this writ petition is that BTTB being registered under Section 15 of the VAT Act, 1991 as VAT payee, cannot collect VAT from its subscribers and, if VAT is at all payable, it is payable by the service provider, i.e. BTTB itself, pursuant to the provisions of the VAT Act, 1991.

3. BTTB filing an affidavit-in-opposition contested that it collects VAT from its sub­scriber @ pursuant to the provisions of the Act. Since BTTB is a VAT payee, being registered under Section 15 of the Act, a duty is cast upon them to collect VAT at the prescribed rate from its subscribers and deposit the same in due course to the VAT authority and, as such, they are mere­ly acting as the collecting agent of the Government.

4. A. B.M. Bayezid, learned Advocate, appearing for the petitioner has submitted that the High Court Division erred in law in not considering that Sub-section (3)(Ga) of Section 3 of the VAT Act 1991, provided that the service provider is liable to pay VAT which is apparently expressed by the law itself but it was totally misread and misconceived and the whole theme is kept in a darkness by the judgment and order and the actual meaning and the intention of  the Parliament was not reflected in the judgment and as a con­sumer of service VAT has been imposed upon the petitioner which is the violation of the aforesaid provision of law and as such, the impugned judgment and order is liable to be set aside.

5. The learned Advocate further submitted that the High Court Division misread and misconceived and failed to make a clear and effective interpretation of the unusual misinterpretation and mis-implementation of sub-section (3)(Ga) of Section 3 of the said Act which is much required to be cleared up for the ends of justice, other­wise, the petitioner as well as the public at large shall be highly prejudiced and the darkness to the extent shall exist and as such, the impugned judgment discharging the Rule with cost of Tk.5000.00 is liable to be set aside for the ends of justice.

6. It appears from the record that the VAT is payable on goods and services provided and it is payable by the service provider or by trader or by manufacturer. It also appears that the incidence of VAT is ulti­mately shifted to the consumers although at the initial stages, VAT is liable to be paid by different persons. It appears that an importer is liable to pay VAT at the import stage @ 15% on the price which is determined pursuant to Section 3(1) read with Section 5 of the VAT Act.

7. The High Court Division observed that VAT is leviable on goods or services pro­vided that reality leads it to the irresistable conclusion that the VAT is payable only by the ultimate consumer of the goods or service taker. The case becomes clear from the provision of Section 73 of the said Act. It is the consumer or purchaser of the commodity or the subscriber of a tele­phone who is liable to pay VAT because VAT is leviable on goods or service. Therefore a person, who does not enjoy the benefit of the goods or service, by no stretch of imagination, can be said that he is to bear the incidence of tax. This would destroy the scheme of VAT Act and frus­trate the purpose of the enactment. VAT is a tax leviable on goods and service, it must be paid by the person who purchases goods or enjoys the benefit of service pro­vided by a service provider.

8. The High Court Division held that VAT is collected fractionally along the whole chain of distribution from the point of importation or production to the supply to the consumers. The incidence of VAT ulti­mately falls on the consumer but a duty is cast upon the trader or service provider to collect it from the consumer or user of the services and then to account for the same to the Government.

9.  In view of the above, we find no sub­stances in the submissions of the Advocate for the petitioner.

Accordingly, the leave petition is dis­missed.

Ed.

Source: VI ADC (2009) 236

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