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The Commissioner Trade Tax, U.P. v. Flex Pouches Pvt. Ltd. - SALES/TRADE TAX REVISION No. 1063 of 1999 [2006] RD-AH 123 (2 January 2006)


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The Commissioner, Trade Tax, U.P. Lucknow. ....Applicant


S/S Flex Pouches Pvt. Ltd., NOIDA. ....Opp. Party


Hon'ble Rajes Kumar, J.

Present revision under section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") is directed against the order of Tribunal dated 14.07.1999 for the assessment year 1990-91 under the U.P. Trade Tax Act.

It appears that Dealer/opposite party (hereinafter referred to as "Dealer")  has engaged the contractors for the construction of the buildings and as per the agreement provided the materials to the contractors and while making the payment value relating to the material have been deducted. The claim of the dealer was that the title of the goods have never been passed on to the contractors and therefore, there was no sale of material by the dealer. The claim of the dealer had been rejected by the assessing authority and the supply of the materials to the contractors have been treated as sale relying upon the decision of the Apex Court in the case of M/s N.M.Goel & Company Vs. Sales Tax Officer, Rajnandgaon and another, reported in 1990 UPTC, 865. First appellate authority  has allowed the appeal and deleted the tax levied on such material. Order of the first appellate authority has been confirmed by the Tribunal.

Heard learned counsel for the parties.

Learned Standing Counsel has submitted that there is no dispute that the contract was for the construction of the building and the materials have been supplied by the dealer and the dealer had deducted the value of the goods while making the payment to the contractors. He submitted that in the circumstances such supply of the material to the contractor have been treated as sale by the Apex Court in the recent decision in the case of Karya Palak Engineer, C.P.W.D., Bikaner Vs. Rajasthan Taxation Board, Ajmer and others, reported in JT 2004 (6) SC, 384. Learned counsel for the dealer relied upon the decision of the Tribunal.

Having heard learned counsel for the parties, I find substance in the argument of learned Standing Counsel. On the facts of the case, issue involved is squarely covered by the decisions of the Apex Court, which has been followed by this Court in Trade Tax Revision No.1614 of 1993, M/s Majestic Auto Limited Vs. CST, decided on 21.09.2004. In the aforesaid cases, it has been held that the supply of material to the contractor has been held as sale and liable to tax.

In the result, revision is allowed. Order of the Tribunal is set aside. Appeal No.239 of 1994, filed by the Commissioner of Trade Tax before the Trade Tax Tribunal has been allowed and the order of the first appellate authority has been set aside.




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