High Court of Judicature at Allahabad
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The Commissioner, Trade Tax, U.P. Lucknow v. S/S Adhisase Abhiyanta, Lalitpur - SALES/TRADE TAX REVISION No. 995 of 1995  RD-AH 828 (18 September 2004)
TRADE TAX REVISION NO.995 OF 1995
The Commissioner, Trade Tax, U.P., Lucknow. ....Applicant
S/S Adhisase Abhiyanta, Lalitpur. ....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 15.03.1995 relating to the assessment year 1987-88.
Admittedly, dealer/opposite party (hereinafter referred to as "Dealer") supplied cement, iron and steel to the contractor in pursuance of the agreement for the use in the construction, which they have purchased from outside the State of U.P. Assessing authority recorded the finding that while making the payment to the contractor, the value of the aforesaid items were deducted in the bill. Therefore, 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, the supply of cement, iron and steel were treated as sales. First appeal filed by the dealer was rejected. Tribunal allowed the second appeal and deleted the tax levied on cement and iron steel supplied by the dealer to the contractor.
Heard learned Standing Counsel. List revised. No one appears on behalf of the dealer.
Learned Standing Counsel submitted that facts of the case is similar to the facts of the case of M/s N.M.Goel & Company (Supra) and in the case of Rashtriya Ispat Nigam Limited Vs. State of Andhra Pradesh, reported in 1988 UPTC, 727. He submitted that Tribunal has allowed the appeal mainly on the ground that the condition no.17 of the agreement says that the ownership of said property shall be with the Board and it could not removed from the site without the permission of the Executive Engineer and the unconsumed quantity would be returned and in case, if it would not be returned the Executive Engineer would take a penal action. He submitted that the similar condition was also there in the case of M/s N.M.Goel & Company (Supra), which is referred in the order of the Apex Court. Therefore, the Tribunal has erred in distinguishing the decision of the Apex Court in the case of M/s N.M.Goel & Company (Supra).
I have perused the order of Tribunal and the authorities below.
It appears that Tribunal has not properly considered the decision of the Apex Court in the case of M/s N.M.Goel & Company (Supra), which has been followed by the Apex Court in the case of Rashtriya Ispat Nigam Limited (Supra). In the present case assessing authority had recorded a finding that the value of the cement, iron and steel were deducted in the bill from the payment. This finding has also been confirmed by the first appellate authority but the Tribunal has not considered this aspect of the matter. In this view of the matter, case is remanded back to the Tribunal to decide the appeal afresh. Tribunal may consider whether the finding recorded by the assessing authority that the value of the cement, iron and steel were deducted in the bill from the payment is correct or not and if it is correct, whether the terms and conditions in the case of M/s N.M.Goel & Company (Supra) and in the case of Rashtriya Ispact Nigam Limited (Supra) are similar to the case of the dealer or there is any material difference in the terms and conditions.
In the result, revision is allowed. Order of Tribunal is set aside and the matter is remanded back to the Tribunal to decide the appeal.
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