High Court of Judicature at Allahabad
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The Commissioner,Trade Tax U.P.Lko. v. S/S Adhishasi Abhiyanta - SALES/TRADE TAX REVISION No. 472 of 1996  RD-AH 1383 (9 November 2004)
Court no. 55
Trade Tax Revision no. 472 of 1996.
Trade Tax Revision no. 474 of 1996.
Commissioner of Trade Tax, U. P. Lucknow ... Revisionist.
S/S Adhishasi Abhiyanta, R. D. C. O., Lalitpur. .... Respondent.
Hon'ble Rajes Kumar, J.
These two revisions under Section 11 of U. P. Trade Tax Act (hereinafter referred to as ''Act') are directed against the order of Tribunal dated 15.12.1995 relating to the assessment years 1983-84.
One Revision relates to Unit no.1 and another Revision relates to Unit no. 7 of the opp. party. It appears that on the receipt of information about the transfer of Cement from one Unit to another Unit, Assessing Authority passed an ex-parte order and levied tax on the turnover of Cement and Iron drawing inference that the Cement and Iron were supplied to the contractor. Appeals filed by the opp. party were rejected. Tribunal allowed the appeal and deleted tax.
Heard Counsel for the parties.
Learned Standing Counsel submitted that the order of Tribunal is patently erroneous and contrary to the decision of Apex Court in the case of N. M. Goel and Company Vs. CST reported in 1990 UPTC page 865, Rashtriya Ispat Nigam Limited Vs. State of Andhra Pradesh, reported in 1998 UPTC, 727 and in the latest decision of Apex Court in the case of Karya Palak Engineer Vs. Rajasthan Taxation Board, Ajmer and others reported in JT. Today 2004 (6) SC page 384 Learned Counsel for the opp. party submitted that from perusal of assessment order and from the order of First Appellate Authority it is not clear that during the year under consideration, materials were supplied to the contractor. He submitted that as per the general terms and condition of the contract, ownership of materials supplied to the contractor remains with the opp. party and therefore, under the terms and condition supply of material cannot be treated as sale.
I have perused the order of Tribunal and the authorities below. Perusal of order of all the authorities shows that the details of contract executed during the year under consideration and for the execution of contract, how much materials have been supplied by the opp. party to the contractor, have not been referred. The terms and condition of contracts have also not been considered. In my opinion in the circumstances, matter requires fresh consideration by the Assessing Authority. Assessing Authority is directed to find out that how much contracts have been got executed, what was the terms and condition of contracts and how much materials have been supplied to the contractor during the year under consideration and thereafter decide whether the supply of materials to the contractors, amounts to sale on the terms and condition of the contract and law laid down by Apex Court in the case of N. M. Goel and Company Vs. CST , Rashtriya Ispat Nigam Limited Vs. State of Andhra Pradesh, reported in 1998 UPTC, 727 and in the latest decision of Apex Court in the case of Karya Palak Engineer Vs. Rajasthan Taxation Board, Ajmer and others (supra).
In the result, both the revisions are allowed. Order of Tribunal is set aside and the matter is remanded back to the Assessing Authority to pass assessment order afresh in the light of observations made above.
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