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PENTEX ENGINEERING PVT. LTD. versus THE COMMISSIONER, TRADE TAX, U.P. LUCKNOW

High Court of Judicature at Allahabad

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Pentex Engineering Pvt. Ltd. v. The Commissioner, Trade Tax, U.P. Lucknow - SALES/TRADE TAX REVISION No. 631 of 2006 [2006] RD-AH 13111 (7 August 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court no. 43

Trade Tax Revision no.  631 Of 2006.

S/S Pentex Engineering Pvt. Ltd., Ghaziabad. ...  Revisionist.

Versus

The Commissioner, Trade Tax, U. P. Lucknow. .... Opp. Party.

Hon'ble Rajes Kumar, J.

Present revision under section 11 of U.P. Trade Tax Act (hereinafter referred to as the "Act") is directed against the order of Tribunal dated 20th, January, 2006 relating to assessment year 1999-2000.  

The brief facts of the case are that the applicant is a Private Limited Company incorporated under the Indian Companies Act, 1956 having its Head Office at Bharat Velvet Compound, Safed Pool, Vasanji Road, Mumbai.  It is claimed that the applicant entered into a contract for design supply, installation, testing, commissioning and maintenance of L. P. G. Gas monitoring system with the Bharat Petroleum Corporation Limited and Indian Oil Corporation Limited in U. P. for execution of works contract.  The applicant has established an Office at 113/20, Navyug Market, Ghaziabad.  The applicant is a registered dealer under the U. P. Trade Tax Act as well as under the Central Sales Tax Act.  During the course of assessment proceedings under Section 7 of the Act, applicant disclosed total payment at Rs.53,82,309.25.  Admittedly, applicant has made purchases from outside the State of U. P. for Rs.43,19,560/-.  The Assessing Authority vide order dated 28.2.2002 passed the assessment order and levied tax on the amount of Rs.48,44,078.35 which has been arrived after giving deduction of 10% towards labour charges from gross receipt and tax was levied @ 2.5% for the period 1.4.1999 to 16.1.2000 and @ 4% for the period 17.1.2000 to 31.3.2000.  Subsequently, the Assessing Authority issued a notice under Section 22 of the Act and vide order dated 28.2.2004 passed an order under Section 22 of the Act.  In the order under Section 22 of the Act on the total amount of Rs.48,44,078.35 tax @ 10% was levied treating the goods imported and used in the execution of works contract as Cable Battery, electrical goods etc.  Being aggrieved by the order passed under Section 22 of the Act, applicant filed appeal before the Appellate Authority.   Before the Appellate Authority, applicant contended that the ex-parte order passed under Section 22 of the Act was not justified, inasmuch as, applicant could not appear on the date fixed on account of his illness.  It was further argued that the goods imported were the electrical goods and the transactions were covered by Sections 3, 4 and 5 of the Central Sales Tax Act, hence should be deducted.  The Joint Commissioner (Appeals), Trade Tax, Ghaziabad vide order dated 03.7.2004 allowed the appeal and remanded the matter back to the Assessing Officer.  Before the Assessing Officer, apart from raising dispute about the rate of tax, it was also contended that the goods which have been used in the execution of works contract, were the imported goods, therefore, the transaction being in the course of inter-State, covered under Sections 3, 4 and 5 of the Central Sales Tax Act, were liable to be excluded under Section 3-F(2) of the Act.  It was claimed that the goods imported were the electrical goods.  The Assessing Authority held that the goods imported were the Cables, Terminal Unit, Explosion Proof, Heater, Panels, Transmitter etc. and not the electrical goods and liable to tax @ 10%.  In respect of the claim of deduction relating to the imported goods being covered under Sections 3, 4 and 5 of the Central Sales Tax Act, the Assessing Authority held that such issue has not been raised in the original assessment proceedings and in the order passed under Section 22 of the Act, only rate of tax was rectified and under Section 22 of the Act, mistake apparent on the face of record, can be rectified.  Against the said order, applicant filed appeal before the Joint Commissioner (Appeals), Trade Tax, Ghaziabad.  The Joint Commissioner (Appeals), Trade Tax, Ghaziabad rejected the appeal.  Being aggrieved by the said order, applicant filed second appeal before the Tribunal.  The Tribunal by the impugned order, rejected the appeal.

Heard learned Counsel for the parties.

Learned Counsel for the applicant submitted that the goods, which were used in the execution of works contract, were the electrical goods purchased from outside the State of U. P. in the course of inter-State sales and therefore, the transaction being covered under Sections 3, 4 and 5 of the Central Sales Tax Act, were not liable to tax under Section 3-F (2)(b) (i) of the Act.  He submitted that the Joint Commissioner (Appeals) in its order dated 03.7.2004 while allowing the appeal and remanding back the case to the Assessing Officer has also directed the Assessing Officer to consider the claim of deduction of transactions covered under Sections 3, 4 and 5 of the Central Sales Tax Act.  No appeal against the said order was filed by the Commissioner of Trade Tax, therefore, the said order has become final and is binding upon the Revenue Authority.  In the circumstances, it was not open to the Assessing Officer to refuse the adjudication of the claim of the applicant in this respect on the ground that such issue has not been raised earlier and under Section 22 of the Act, the said claim cannot be examined.  He submitted that the order of the Tribunal confirming the view of the Assessing Officer, is wholly unjustified.  Learned Standing Counsel submitted that in the appellate order dated 03.7.2004, only argument of applicant has been referred and there was no specific direction to the Assessing Officer to examine the claim of deduction of transaction covered under Sections 3, 4 and 5 of the Central Sales Tax Act.  He submitted that for the claim of deduction under Section 3-F (2) of the Act, the nature of transactions are to be examined afresh as to whether they are covered under Sections 3, 4 and 5 of the Central Sales Tax Act and such fresh examination is outside the purview of Section 22 of the Act.  He submitted that no claim has been made by the applicant in the original assessment proceedings and the claim was not adjudicated and in the order passed under Section 22 of the Act, only rate of tax was enhanced.  Thus, it was not open to the applicant to raise issue relating to the claim of deduction of the turnover on the ground that it was covered under Sections 3, 4 and 5 of the Central Sales Tax Act.

Having heard learned Counsel for the parties and have perused the order of the Tribunal and the authorities below.  

I do not find any merit in the submissions of learned Counsel for the applicant.  In the original assessment proceedings, applicant had not raised any claim of deduction under Section 3-F (2) on the ground that the transactions were covered under Sections 3, 4 and 5 of the Central Sales Tax Act.  Vide ex-parte order dated 28.2.2004 passed under Section 22 of the Act, only rate of tax was enhanced.  Though, in appeal filed against the order under Section 22 of the Act, applicant had raised the claim of deduction under Section 3-F(2) of the Act covered under Sections 3, 4 and 5 of the Central Sales Tax Act, but perusal of order dated 03.7.2004 shows that no specific direction was given by the Joint Commissioner (Appeals), Trade Tax, Ghaziabad to the Assessing Officer to adjudicate such claim.  The matter appears to have been remanded back to the Assessing Officer on the ground that the order passed under Section 22 of the Act was ex-parte and the claim of the applicant was that the goods imported, were the electrical goods and not the Cables etc.  In any view of the matter, for adjudication of the claim of deduction under Section 3-F (2), nature of transaction required examination which was not possible in the proceedings under Section 22 of the Act.  In the proceedings under Section 22 of the Act, only mistake apparent on the face of record, can be rectified.  The issue, which requires investigation and examination of the facts, argument and where two opinions are possible is outside the purview of Section 22 of the Act.  Reliance is placed on the Division Bench decision of this Court in the case of Concrete Spun Pipe Works Versus The Sales Tax Officer, Sector-V, Kanpur reported in 24 STC page 48.  In the circumstances, I do not find any error in the order of the Tribunal.

In the result, revision fails, and is, accordingly, dismissed.

Dt:07.08.2006.

MZ/-


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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