Court No. - 30 Case :- SALES/TRADE TAX REVISION No. - 1173 of 2009 Petitioner :- M/S Ashok Kumar Chhabra Contractor Respondent :- Commissioner, Commercial Tax, Lucknow Petitioner Counsel :- Shubham Agrawal Respondent Counsel :- C.S.C. Hon'ble Bharati Sapru,J.
Heard learned counsel for the revisionist assessee Sri
Shubham Agrawal and Sri Nimai Das learned standing
counsel for the State.
This revision has been filed by the assessee against an
order of the Tribunal dated 16.1.2009 for the assessment
year 1991-92.
The questions of law referred to are as under:
“(i) Whether the tribunal was justified in denying the benefit
of deduction of U/s.3-F (2)(b)(i) of the U.P. Trade Tax Act to
the applicant, by not treating the transaction to be an inter-
State sale only because the Central Sales Tax has not been
paid?
(ii) Whether the tribunal was justified in treating the inter-
State sale of Bitumen & Rori to be taxable under the U.P.
Trade Tax Act by over looking the certificate dated 23.10.96
given by the project manager NOIDA which conclusively
proves that the movement of goods from Delhi to NOIDA
was in pursuance of prior contract of sale, and the goods
have already been appropriated before the movement?
(iii) Whether tribunal was justified in denying the benefit of
deduction under section 3-F (2)(b)(i) of U.P. Trade Tax Act
which is in the teeth of law declared by this Hon’ble Court in
the case of M/s. Santosh and Company and M/s IRCON Ltd.
?
(iv) Whether tribunal was justified in law, in misconstruing
the judgment of PNC construction and treating the deemed
sale of Bitumen and Rori to be the sale of hot mix material
and treating it to be unclassified item?”
This matter has been argued at length by Sri Shubham
Agrawal whose contentions are that in view of the Apex
Court judgment in the case of Santosh & Co. versus C.T.T.
reported in 1966 (17) S.T.C. 473 and the decision of this
Court in the case of Santosh & Co. versus C.T.T. reported
in 1999 U.P.T.C. 823, the assessee is entitled to the benefit
of deduction under section 3-F (2)(b)(i) of the Act for the
import of the Rori which he has purchased out of State of
U.P. The tribunal has disallowed deduction sought by the
assessee on the ground that he was not able to establish
that he has paid Central Sales Tax on the Rori, which was
imported.
The contention of the learned counsel for the assessee is
that requirement of the section is not that it should be
established that Central Sales Tax has actually been paid
but simply that it should be established that the goods were
brought from out of State of U.P. and were to be taxed under
the Central Sales Tax Act.
The State has filed counter affidavit. In para 4 and 5 of the
counter affidavit, it is admitted to the State that Bitumen and
Rori were hot mixed at Delhi under the supervision of the
engineers of the contractor and then brought to NOIDA at
the site of the construction. It has also come on record that
Rori was purchased from outside the State of U.P. while
Bitumen was purchased at Mathura.
Thus in view of the averments in para 4 and 5 of the counter
affidavit, it becomes clear that the Rori which was purchased
from outside the State of U.P. would be excisable to tax
under the Central Sales Tax Act and therefore the rate of the
tax which should have been imposed on Rori would be the
rate under the Central Sales Tax ACt, which according to the
assessee was 4% and he has been charged at 7%.
The order dated 17.5.2003 of the tribunal is therefore
modified to the extent that the assessee will be charged the
rate of the tax for the Rori which was prevalent at that time
under the Central Sales Tax Act . Other than this
modification, the impugned order will stand as it is.
The revision is disposed of as above. No costs.
Order Date :- 12.1.2010
rk