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EXECUTIVE ENGINEER,ELECTRICITY CIVIL MAINTENANCE versus THE COMMISSIONER OF TRADE TAX U.P.LKO.

High Court of Judicature at Allahabad

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Executive Engineer,Electricity Civil Maintenance v. The Commissioner Of Trade Tax U.P.Lko. - SALES/TRADE TAX REVISION No. 1034 of 1999 [2006] RD-AH 1831 (24 January 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.55

TRADE TAX REVISION NO.1034 OF 1999

AND

TRADE TAX REVISION NO.1038 OF 1999

AND

TRADE TAX REVISION NO.1044 OF 1999

Executive Engineer, Electricity Civil

Maintenance Division-I. ....Applicant

Versus

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

Hon'ble Rajes Kumar, J.

These three revisions under section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") are directed against the order of Tribunal dated 19.04.1999 for the assessment years 1987-88, 88-89 and 89-90.

Applicant is one of the Division of  U.P. Electricity Board, which was undertaking of the State Government, engaged to look after the electrical and civil nature of work. During the years under consideration, admittedly, applicant had engaged the contractors for the execution of civil nature of work and supplied the material namely, cement, steel etc. to the contractors.  It was claimed that the Division-3 was engaged in procuring the material and after procuring the materials, the same were supplied to Division-1 and such materials were provided to the contractors. It was claimed that the materials, which were procured from Division-3 were imported from outside the State of U.P. and were also purchased within the State of U.P. Before the assessing authority though the claim was made that the materials, which were supplied to the contractors were procured from Division-3 but no details were furnished. Assessing authority treated the supply of materials to the contractors as sale and levied the tax thereon. First appeals have also been dismissed by Assistant Commissioner (Judicial), Trade Tax, Aligarh. Applicant filed second appeals before the Tribunal. Tribunal by the impugned order rejected all the appeals.

Heard learned counsel for the parties.

Learned counsel for the applicant submitted that  though the details of the materials received from Division-3 could not be furnished before the assessing authority but the same was furnished before the Tribunal. The list of such material is enclosed as annexure-3  to the revision. He also referred the assessment order passed in the cases of Division-3, which is annexure-4 to the revision, in which assessing authority had given the details of the purchases made within the State of U.P. He submitted that  the goods which were received from Division-3 and  procured within the State of U.P. after the payment of tax are not liable to tax in the hand of the applicant. He further submitted that the goods received from Division-3 had also been subjected to tax in the proceeding under section 21 of the Act in the case of Division-3 and the matter is pending in appeal and in case if the levy of tax in the case of the applicant is confirmed, it amounts to double levy of tax on the same materials. Learned Standing Counsel relied upon the order of Tribunal.

Having heard learned counsel for the parties, I have perused the order of Tribunal.

It is true that the details of the goods received from Division-3 could not be furnished before the assessing authority as well as before the first appellate authority, which appears to be clearly on account of the negligence and inaction on the part of the officials involved in conducting the assessment. It has not been disputed that the applicant had received the goods from Division-3. Perusal of the assessment order in case of Division-3 shows that the goods had been procured both from outside the State of U.P. and within the State of U.P. Thus, the goods which have been supplied to the contractors, if procured within the State of U.P. after paying the tax, further tax is not leviable. In the circumstances, in the interest of justice, matter is remanded back to the assessing authority to examine the claim of the exemption on the material, which is claimed to have been purchased within the State of U.P. It is made clear that the supply of materials to the contractor for value deducted while making the payment to the contractors has been held sale by the Apex Court in the cases of M/s N.M.Goel & Company Vs. Sales Tax Officer, Rajnandgaon and another, reported in 1990 UPTC, 865, Karya Palak Engineer, C.P.W.D., Bikaner Vs. Rajasthan Taxation Board, Ajmer and others, reported in JT 2004 (6) SC, 384. Thus, the order of Tribunal treating the supply of the material to the contractors  as sale, is upheld and the matter is remanded back to the assessing authority to examine the claim of exemption on the materials, which is claimed to have been purchased within the State of U.P. Before parting with the case, I may observe that due to negligence, carelessness and in action on the part of Government officials of the Government departments, Government is forced to involve in litigations resulting wastage of public money and creating huge pendency in the Court. Before the assessing authority if the claim was made that goods have been obtained from Division-3 which were purchased within the State of U.P., there was no reason in not furnishing the details before the assessing authority. Non furnishing of details appears to be only on account of gross negligence and inaction on the part of the person concerned, who had conducted the assessment cases.  Thus, I suggest that necessary action may be taken against the persons concerned, who were responsible in conducting the assessment cases relating to these assessment years.

In the result, all the revisions are allowed. Order of the Tribunal and the first appellate authority are set aside and the matter is remanded back to the assessing authority to pass fresh assessment orders in the light of the observations made above.

Dt.24.01.2006

R./


Copyright

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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